Henry Vogt Machine Co.

National Labor Relations Board - Board Decisions

Apr 27, 1971

190 N.L.R.B. 122 (N.L.R.B. 1971)

122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henry Vogt Machine Co. and United Steelworkers of
America, AFL-CIO. Case 9-CA-5568
April 27, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On November 12, 1970, Trial Examiner Milton
Janus issued his Decision in the above-entitled proceed-
ing, 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 at-
tached Trial Examiner's Decision. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's Deci-
sion, a supporting brief, and a motion for oral
argument, and the Charging Party filed an answering
brief to Respondent's exceptions and a statement in
opposition to Respondent's motion for oral argument.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent herewith.'
The Trial Examiner found, and we agree, that a
bonus based on regular compensation and length of
service, and paid uniformly and with sufficient
regularity to become part of wages, is a mandatory
bargaining subject. However, we disagree with his
finding that this Respondent failed to fulfill its statutory
bargaining obligation when it failed to pay its em-
ployees a Christmas bonus in 1969.
Beginning in 1925, the Respondent gave all its em-
ployees a Christmas gift or bonus which varied in form
and amount and included a gold piece and life insur-
ance. Nothing was given between 1930 and 1937. From
1938 to 1941, $5. In 1942, the year the Union was
recognized, war stamps or bonds were given. Between
1943 and 1964, each employee received amounts which
varied from $10 to $25. In 1965, each employee with
more than 1 year's service received an amount equal to
40 hours' pay; those with from 6 to 12 months' service,
20 hours' pay; and those with less than 6 months, $25.
Nothing was paid in 1966. In 1967 and 1968, all em-
ployees received amounts based on the 1965 formula.
In 1969, again , nothing was given.
The record shows that the Union for years has made
little, if any, attempt to bargain about the bonus. The
Union remained silent when the Respondent failed to
pay a bonus in 1966. In 1967, when advised of Re-
spondent's intent to resume bonus payments on the
basis of the 1965 payments, the Union contented itself
with raising no objections, and sought no contractual
commitments with respect to the bonus.
The above facts show that the bonus payment was
intermittent and not uniform in amount or basis over
the years. It is also evident that from 1942, when the
Union was recognized, until 1969, the Union voiced no
objection to the payment, nonpayment, or change in
the bonus; nor did the Union make any request to
bargain about the bonus issue. Thus by 1969 it is clear
that the payment of a bonus had come to be considered
a discretionary matter, as to which bargaining was not
the custom or practice.2
Moreover, the record shows that a proposed change
in this discretionary status of bonus payments was sug-
gested by the Union and discussed two or three times
during the 1969 contract bargaining meetings. When
the Union first broached the subject, the Respondent
expressed its willingness to talk about anything at any
reasonable time. Thereafter, in answering the Union's
queries about the bonus, the Respondent explained it
had given a bonus in some, but not all, years, and
described the bases it used to determine whether or not
it could pay a bonus in a particular year, such as plant
conditions and business outlook. During this same
meeting, the Respondent expressly rejected the Union's
proposal that it might want "to make this Christmas
check a part of the contract.... If it's in the contract,
then the men can count on it. It could be a bone you
want to toss us." When the Respondent flatly turned
down this proposal with the terse comment, "Not
agreeable," the Union never again mentioned the bonus
issue during negotiations. The parties then reduced to
writing, in article 22 of the 1969 agreement, their un-
derstanding that, "This contract expresses the entire
agreement between the parties hereto."
In our view, these facts, realistically interpreted, in-
dicate that the parties had reached a mutual under-
standing that the previous discretionary status of the
bonus would remain unchanged.
On this record, therefore, we find that Respondent
did not violate its statutory bargaining obligation by
deciding unilaterally, and for nondiscriminatory rea-
sons, not to pay a Christmas bonus in 1969. Accord-
ingly, we shall dismiss the complaint in its entirety.
' The Respondent's request for oral argument is hereby denied, as in our
opinion, the record in this case , including the exceptions and briefs, ade-
quately presents the issues and positions of the parties.
190 NLRB No. 13
' N.L.R.B. v. Wonder State Manufacturing Co., 344 F.2d 210 (C.A. 8).
ORDER
HENRY VOGT MACHINE CO.
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed.
MEMBER BROWN, dissenting:
Unlike my colleagues , I would adopt the Trial Ex-
aminer's interpretation of the facts and his conclusion
that the Respondent violated Section 8(a)(5) by unilat-
erally failing to pay the bonus in 1969 . The background
and relevant events are clear and undisputed . The sole
question is the import thereof.
I am persuaded that the Trial Examiner 's view of this
case is reasonable and accurate . To characterize as "in-
termittent," as the majority does , a bonus paid every
year for 30 years since 1938 except for the 2 years 1966
and 1969 seems to me to misstate the facts. And to
describe as "not uniform in amount or basis" the pay-
ment for 21 years (between 1943 and 1964) of amounts
between $10 and $25 , and in 1965, 1967, and 1968-of
amounts based on length of service (40 hours' pay after
1 year 's service , 20 hours ' pay after 6-12 months' work,
and $25 with less than 6 months' service) seems to me
to misconstrue the record.
I can only view the conclusions as being designed to
fit the language of the court in N.L. R.B. v. Wonder
State Manufacturing Company, on which the majority
rationale relies . Comparison of the facts of that case
with those here is especially revealing . For there the
bonus was described as "made intermittently , i.e., in
three of the five years immediately prior to 1962" with
none paid in 1962 ,' and the court distinguished cases
cited by it on the ground "the bonuses were of regular
and long duration ( 10 to 19 years) and in most instances
the bonus was tied into seniority"4 (emphasis supplied).
Finally , the implicit holding of the majority herein
that the conduct of the Union amounted to a "waiver"
of its right to bargain with respect to the bonus is
clearly contrary to prior holdings in cases involving
facts closely analogous to those here.'
In sum, I find the reversal of the Trial Examiner's
conclusions to be totally unwarranted , and I would
adopt his Decision in its entirety.
344 F.2d at 214. The nonpayment in 1962 was in issue The recitation
of the facts in that case shows the company began operation in 1950 and
the bonus had been paid only in 1955, 1956, 1959, 1960, and 1961
Ibid. It is thus apparent that the court was not indicating that it deemed
it mandatory that a bonus be tied to seniority In any event, it may be
significant that the bonus in the instant case during the period beginning
1965 was in fact based on length of service with the Respondent.
For example, Leeds & Northrup Company, 162 NLRB 987, 992-993,
enfd 391 F.2d. 874 (C A 3), decided by a panel of Members Fanning,
Jenkins, and myself, is clearly parallel to the present situation.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
123
MILTON JANUS, Trial Examiner: United Steel Workers of
America, AFL-CIO, (hereafter called the Union) filed a
charge on March 16, 1970, against Henry Vogt Machine Co.
(hereinafter called the Company or the Respondent). A com-
plaint based on the charge was issued on May 14, 1970, by
the Regional Director for Region 9. It alleges that the Com-
pany violated Section 8(a)(5) and (1) of the Act by failing to
pay in 1969 a Christmas bonus which it had customarily and
regularly paid previously to its production and maintenance
employees represented by the Union, and by refusing to bar-
gain with the Union, pursuant to its request, concerning pay-
ment of the same bonus.
I conducted a hearing in this matter at Louisville, Ken-
tucky, on August 18 and 19, 1970. The General Counsel and
the Company filed briefs with me after the hearing. Upon the
entire record in this case, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
Respondent is a Kentucky corporation engaged at its plant
at Louisville, Kentucky, in the manufacture and sale of ice-
making machines, valves, and fittings. During a recent 12-
month representative period, the Company had both a direct
inflow and a direct outflow of products, in interstate com-
merce, which was valued in excess of $50,000. Products
valued in excess of that amount were shipped from points
outside Kentucky to its Louisville plant, and products in
excess of the same amount were shipped from the plant to
points outside Kentucky. The Company admits, and I find,
that it is an employer engaged in commerce within the mean-
ing of the Act.
II THE LABOR ORGANIZATION INVOLVED
United Steel Workers of America, AFL-CIO, is a labor
organization within the meaning of the Act.
III THE UNFAIR LABOR PRACTICES
A. Bargaining History
The Union has represented a production and maintenance
unit at the Company's Louisville plant continuously since
1942. As of the hearing date there were 800 to 900 employees
in that unit. There were an additional 300 or so employees
employed in the plant and office, of whom less than 25 were
represented by another union, while the remainder were un-
represented by any labor organization.
The latest bargaining agreement between the Company
and the Union became effective as of August 10, 1969, and
is not due to expire until July 30, 1972. The negotiations for
the current agreement began on May 21, 1969, and continued
past the termination date of the previous agreement, July 20,
1969, when the employees went out on strike. The strike
lasted until a new agreement was finally reached early in
August 1969. There were 16 negotiating sessions between the
parties and three additional sessions in which each party met
separately with representatives of the Federal Mediation and
Conciliation Service, culminating in the current agreement.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Christmas Gifts ance, and a Christmas bonus. Heuser, the Company presi-
The Company began its practice of giving all its employees
a bonus or gift at Christmas time in 1925. It took the form
in the early years of a gold piece or life insurance. Nothing
was given between 1930 and 1937, and from 1938 to 1941,
each employee was given a $5 check. In 1942, the year the
Union was recognized, war stamps or bonds were given. Be-
tween 1943 and 1964, the amounts which the Company gave
to each of its employees in a particular year varied from $10
to $25.
In 1965 the Company gave each employee with more than
1 year's service a bonus of 40 hours' pay. Those with from 6
to 12 months received 20 hours' pay, and those with less than
6 months' service got a flat $25. In the summer of 1966,
between the expiration of one agreement and the execution of
the next, the employees represented by the Union went on
strike. No Christmas bonus was paid to any employees in
1966, whether represented or unrepresented. In 1967 and
1968, the Company again gave all its employees a bonus
computed on the formula used in 1965. As noted above, there
was again a strike in 1969, and again at Christmas time of that
year the Company gave none of its employees a bonus pay-
ment.
None of the bargaining agreements from 1942 on, includ-
ing the one executed in August 1969, have ever mentioned a
Christmas bonus. At no time during this entire period did the
Company consult with the Union in advance as to its decision
to pay or not to pay a bonus in any particular year. However,
in 1965 it asked the then International Representative of the
Union if it was all right to increase the bonus from the $25
previously paid, to the formula described above based on
length of service. No protest was made by the Union to the
failure of the Company to pay a bonus in 1966. In October
1967, during a meeting between the Company and the Union
on an unrelated manner, a company official asked if the Un-
ion had any objections to resumption of the bonus payment
for that year on the basis first used in 1965. There was no
objection.
After nonpayment of a bonus in 1969, the president of the
Local Union, Thomas, called the president of the Company,
Heuser, and protested the failure to pay a bonus for that year.
Thomas told Heuser that the employees felt that the bonus
was part of their wages, that they were entitled to it, and
would take action to get it. Heuser told Thomas that he
considered payment of a bonus to be a management preroga-
tive. The Union thereupon filed the charge which has led to
this proceeding.
C. The 1969 Contract Negotiations
Negotiating sessions for the 1969 contract took place be-
tween May 21 and August 5, 1969. Voluminous written
proposals were exchanged and discussed by the parties during
these sessions, but none of them mentioned a Christmas
bonus. Additional proposals relating to possible contract
terms were offered orally during the bargaining sessions, but
again none of them related to the bonus. However, the subject
of a bonus did come up two or three times in connection with
other matters then under discussion.
There is some disagreement as to when these references to
a Christmas bonus took place, and who participated in what-
ever discussion ensued. Thomas and Metcalfe, employees of
the Company, officers of the Local, and members of the Un-
ion's negotiating team, both testified that during a recess at
one negotiating session (late in June or early in July according
to Thomas), Schlegel, a company official and one of its
negotiators, complained that the Union was asking for an
extra $50 for each week of vacation when the Company was
already giving them regular vacation pay, holidays, insur-
dent, is then supposed to have said that as long as the Com-
pany's business was good he would continue to pay a
Christmas bonus. Thomas and Metcalfe both testified that
Ringham, the International Representative on the Union's
negotiating team was out of the room when this interchange
took place. Ringham, who also testified, said that the subject
of a Christmas bonus.was never mentioned during any of the
negotiating sessions while he was present. Thus, the tes-
timony of these three union negotiators is mutually consist-
ent, that Ringham was not present the only time the matter
came up.
On the other hand, company officials present at the nego-
tiating sessions testified that Ringham was present on the
only two occasions when the bonus came up. The first occa-
sion is said to have occurred after the close of the first nego-
tiating session , as they were gathering up their papers
preparatory to leaving, when Ringham is supposed to have
said that the Union would want to talk about the Christmas
bonus, at which Stokes, the Company' s manager of industrial
relations, replied that the Company would talk with him
about anything at any reasonable time.
The second occasion is said to have taken place at the sixth
negotiating session on June 27, 1969. Vogel, who is the gen-
eral plant superintendent, was the company official at the
negotiating sessions who was taking notes for the Company
at the discussions. His notes for that session are in evidence
as Respondent's Exhibit 1(f) and read as follows:
Ringham: Don't you give a Christmas bonus.
Stokes: Some have been given. Last year one week's
pay based upon 40 hours. In 1966 no check. Other years
$10, $25 or bonds.
Ringham: What is it based on.
Lee Schlegel: Plant conditions, business outlook, etc.
Ringham: We will talk about this later. We may want
to make this Christmas check a part of the contract.
Schlegel: Not agreeable.
Ringham: If it's in the contract then the men can
count on it. It could be a bone you want to toss us.
Schlegel and Stokes both testified that an exchange between
Ringham and themselves had taken place, substantially as set
out in Vogel's notes.
As noted before, the matter of a Christmas bonus was not
otherwise mentioned or discussed in any of the other bargain-
ing sessions , nor is the subject specifically covered in the
agreement. Article 22 of the 1969 agreement reads as follows:
This contract expresses the entire agreement between the
parties hereto. There are no understandings between the
parties as to the subject matter of this contract other
than as herein set forth. However, by mutual agreement
the parties may amend this agreement.
D. Findings and Conclusion
It is well established that when a Christmas bonus is not
a gratuity but an integral part of a compensatory structure,
it is a term and condition of employment, and thus a manda-
tory subject of collective bargaining. ' The Company argues
' Niles-Bement-Pond Co., 97 NLRB 165, 166 , enfd. 199 F.2d 713 (C.A.
2). See alsoProgress Bulletin Publishing Company, 182 NLRB No. 135;
Century Electric Motor Company, 180 NLRB No. 174 ; Gravenslund Operat-
ing Company, 168 NLRB 513; The Beacon Journal Publishing Company,
164 NLRB 734, enfd . in relevant part 401 F.2d 366 (C.A. 6).
N.LR.B.v. Wonder State Manufacturing Co., 344 F.2d 210 (C.A. 8), on
which the Company relies, is not in fact comparable to this case on its facts.
The court there found that the bonus payments in the 6 years preceding the
year involved in that case were intermittent, not uniform in amount or basis
and dependent upon financial returns . Further, the employer there estab-
HENRY VOGT MACHINE CO.
that its Christmas payments were in fact gratuities made
sporadically, without uniformity and continuity. But pay-
ments made in every year since 1937, with only two excep-
tions, 1966 and 1969, can hardly be said in any realistic sense
to be sporadic or noncontinuous. Even before 1965, when the
formula basing the bonus on regular compensation and
length of service was adopted, payments in previous years
were made uniformly to all employees in any particular year.
Thus, for over 30 years the Company has annually given its
employees a payment supplementary to their regular wages,
which is "sufficient to justify the expectation on the part of
the employees that, absent a change of circumstances, they
would continue to receive a year-end bonus upon which they
might rely as part of their wages." I find therefore, that the
bonus is a wage rather than a gift and that the question of
whether the company could discontinue its payment in 1969
was a subject of mandatory bargaining.
The Company also contends that its decision not to pay a
bonus in 1969 was because the matter had been bargained out
in the contract negotiations, in that the Union had requested
its inclusion in the agreement and the Company had success-
fully resisted it. In my opinion the Company's assumption
that the Union and the Company had bargained over specific
reference for a bonus in the 1969 agreement is not substan-
tiated by the evidence.
The testimony adduced by the General Counsel through
the Union's negotiators is that Ringham, the International's
representative, was never present on the only occasion when
payment of a bonus was mentioned, which was not even
during a formal session . On that occasion, the fact that the
Company paid a Christmas bonus and gave other benefits was
put forward by Schlegel, a company official, as a reason why
it would not agree to pay $50 for each week of vacation as
a supplement to its regular vacation payment. Such an off-
hand reference to a Christmas bonus can hardly be said to
constitute consultation or negotiation of a mandatory subject
of bargaining.
I am prepared, however, to credit the testimony of the
witnesses for the Company, that the bonus question did come
up on other occasions when Ringham was present. The first
such occasion took place after a bargaining session when
Ringham said that the Union would want to talk about the
bonus, and Stokes replied that the Company would talk with
him about anything at any reasonable time. This too, hardly
constitutes the conscious exploration and resolution of differ-
ences between the parties which meaningful negotiations
should entail. All that Ringham said was that he would want
to bring it up later, but there was no discussion about how
the bonus should be computed, who should be eligible for it,
or its relationship to expressed union proposals or company
counterproposals on wages and other benefits. The Company
did not, in fact, even take a position on its inclusion in the
bargaining agreement which was being negotiated.
In my opinion neither does the second conversation involv-
ing Ringham establish that the parties bargained about the
bonus. Here too, Ringham was pointing out that continuation
of the bonus was a matter of concern to the Union, that it
wanted to talk about it later, with the possibility of incor-
porating it into the contract. Ringham's statements "If it's in
the contract, then the men can count on it. It could be a bone
you want to toss us" adds little of substance to what preceded
it. Stated otherwise, it means that Ringham was satisfied to
lished that it had serious impending losses pr%cedmg the withholding of the
bonus in the year in question The court nevertheless expressly recognized
that "if the gifts or bonuses are so tied to the remuneration which employees
received for their work that they were in fact a part of it, they were in reality
wages and within the statute " 344 F 2d at 213.
125
drop the bonus matter for the present, without making up his
mind to press for its inclusion in the contract or to leave it
as an unwritten condition of employment. By his silence
thereafter, Ringham opted in effect not to discuss the matter
further, but to leave the bonus as part of the existing status
quo. By the same test of silence, it seems that the Company
too was willing to leave the matter of a bonus ambiguous and
unresolved. Both parties, if a conscious intention is to be
ascribed to them , seemed to be attempting to extract an ad-
vantage from its own failure to pursue the matter further, but
since only the Company could change the status quo, by
eliminating the bonus, it was up to it to insist that the bonus
matter be placed on the table and bargained out, if it wanted
to use its payment of a bonus as a counterweight to other
union demands. By not doing so, it acceded in effect to the
Union's position that the bonus was to be continued on the
basis most recently used.
I attach no significance to the Union's failure to protest
nonpayment of a bonus in 1966. It may have thought then
that payment of a bonus was a management prerogative, but
its belief does not, of course, change the legal significance of
the Company's longstanding practice of making a supplemen-
tary wage payment at the end of each year.
I therefore find that the Company and the Union did not
negotiate on the substantive aspects of a bonus payment, nor
even on whether it was to be continued or discontinued for
the future. Their failure to do so left the bonus what it had
been in past years-an unwritten condition of employment.
One further contention of the Respondent must be consid-
ered. It is that the Union over the years in which it did not
attempt to bargain about the bonus had implicitly consented
to treat payment or nonpayment as a management perogative
to be unilaterally determined by the Company. Thus, the
Company argues, it acted on the reasonable understanding
that its decision not to pay a bonus in 1969 was made under
its sole discretionary authority, which the Union had im-
pliedly agreed to.
Neither the current contract nor any past contract con-
tained any express provision granting the Company the right
to take unilateral action with respect to bonus payments.2
Nor do I find that the course of conduct between the parties
amounts to a waiver, either explicit or implicit. The Board
has often noted that waiver of a union 's right to bargain about
a change in an existing condition of employment is not to be
readily inferred, and that it must be clear and unmistakeable.'
I am satisfied that a bonus was never negotiated in any of
the contracts from 1942 through 1969, so that it cannot be
said that the Union expressly waived its right to bargain
about the matter. Moreover, since waiver of a right to bargain
will not be inferred unless the union has consciously yielded
in the matter, I cannot find here that there was considered
renunciation by the Union of its right to be consulted on
discontinuance of the bonus. The fact that it had never previ-
ously requested bargaining about the bonus, and had failed
to object in 1966, merely reflects a willingness to go along
with the Company's decision on the bonus most of the time,
without yielding its right to be consulted at other times.
The Board cases on which the Company relies in support
of its argument that the Union has implicitly agreed that the
bonus was a management perogative, are not apposite to the
facts in this case. In Speidel Corporation, 120 NLRB 733,
each time the employer paid a bonus it announced that it was
' Art. 22 of the 1969 contract, set out in a prior section of this Decision,
is not such an express waiver
' The Beacon Journal Publishing Company, 164 NLRB 734, enfd. in
relevant part 401 F.2d 366 (C A 6), General Telephone Company of Florida,
144 NLRB 311, enfd as modified 337 F.2d 452 (C A 5)
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not to be construed as a precedent for future payments; and
the employer had rejected the union's proposal of a "Mainte-
nance of Privileges" clause because it was fearful that the
clause would be broad enough to make the bonus a contrac-
tual obligation. On these facts the Board held that there was
an understanding between the parties that this subject would
remain a management prerogative.' In Tucker Steel Corpora-
tion, 134 NLRB 323, the Trial Examiner had found that the
unilateral discontinuance of the bonus for 1960 did not
amount to a violation, and the Board accepted that holding
pro forma in view of the Respondent's acquiescence in the
Trial Examiner's further finding that the Union had not
waived its right to bargain thereafter about the bonus, and
that the Respondent was in violation of Section 8(a)(5) for
refusing to do so. (See fn. I of the Board's decision.) Thus, the
Board agreed with the Trial Examiner that the bonus was a
mandatory subject of bargaining. The finding that the unilat-
eral discontinuance of the bonus for 1960 was not a violation
of the Act was based in part on these facts: (a) the Union's
failure to object to the Company's statement at the inception
of bargaining for a new agreement that it might terminate the
bonus if the Union obtained its increased vacation demands,
and (b) the Company's letter before the new agreement was
signed that it had decided to discontinue the bonus. Here, on
the contrary, there was no assertion by the Company during
negotiations that it was contemplating nonpayment of the
bonus in 1969, and therefore no explicit or implicit acquies-
cence by the Union with that position.
As the complaint did not allege a violation of Section
8(a)(3) in the Company's refusal to pay the bonus for 1969
because the employees struck, I make no finding on the Com-
pany's motivation. But even without regard to its motivation,
the objective facts that it did not consult with the Union
about nonpayment, and its refusal to discuss that decision
when requested to do so by the president of the Local, spell
out a violation of Section 8(a)(5).
IV. THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and desist
therefrom and take certain afi.-mative actions designed to
I recommend that the Respondent make whole the em-
ployees represented by the Union for the monetary loss suff-
ered by them as a result of the unlawful withholding of the
1969 Christmas bonus, the amount of loss to be determined
by the formula used in making bonus payments in the years
1965, 1967, and 1968, with interest at the rate of 6 percent
per annum.5 I also recommend that Respondent refrain from
unilateral action with respect to the bonus in the future, and
that it bargain on this matter when requested to do so.
CONCLUSIONS OF LAW
1. Henry Vogt Machine Co. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. United Steel Workers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. United Steel Workers of America, AFL-CIO, now is,
and has been at all times material, the exclusive representa-
tive of all employees in the unit described below, which is an
appropriate unit within the meaning of Section 9(a) of the
Act:
All production and maintenance employees at Respond-
ent's plant at Louisville, Kentucky, excluding all fore-
men, salesmen, draftsmen, technical engineers, die sink-
ers, die sinker apprentices, teller operators,
trimmermakers, and office clerical employees, and all
professional employees, guards, and supervisors as
defined in the Act.
4. By unilaterally discontinuing the Christmas bonus in
1969 and by refusing to meet with the Union thereafter for
the purpose of negotiating on the matter, Respondent has
engaged in unfair labor practices within the meaning of Sec-
tion 8 (a)(5) of the Act.
5. By the foregoing conduct, Respondent has engaged in
certain unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
effectuate the policies of the Act. ' Where the formula for determining the bonus payments to individual
employees is definite, and has been used in the most recent prior years, there
is no necessity to require the parties to bargain about what formula to use.
Cf. The Press Company, Incorporated, 121 NLRB and Leeds & North. Progress Bulletin Publishing Company, 182 NLRB No. 135. Compare Gra-
rup Company, 162 NLRB 987, enfd. 391 F.2d 874 (C.A. 3). venslund Operating Company, 168 NLRB 513, fn.8.