Radioear Corp.

National Labor Relations Board - Board Decisions

Oct 30, 1972

199 N.L.R.B. 1161 (N.L.R.B. 1972)

RADIOEAR CORPORATION
Radioear Corporation and International Union of Elec-
trical , Radio and Machine Workers, Local 633,
AFL-CIO-CLC. Case 6-CA-5376
October 30, 1972
DECISION AND ORDER
On August 26, 1971, Trial Examiner Thomas A.
Ricci issued the attached Decision in this proceeding.
Thereafter, the Respondent and General Counsel
filed exceptions and supporting briefs, and the Gener-
al Counsel filed a brief in reply to Respondent's ex-
ceptions and brief.
The National Labor Relations Board has consid-
ered the record and the Trial Examiner's Decision in
light of the exceptions and briefs and has decided to
affirm the Trial Examiner's rulings, findings, and con-
clusions only to the extent consistent herewith.
The complaint alleged that Respondent violated
Section 8(a)(5) of the National Labor Relations Act
by unilaterally terminating, in 1970, a $30 "turkey
money" bonus paid to employees at Thanksgiving
and Christmas. For 13 years prior to 1970, Respon-
dent had paid such a bonus. In 1970, Respondent
signed its first contract with the Union, effective
March 16, 1970. The contract did not mention the
bonus, and when the Union demanded its payment at
Thanksgiving, Respondent refused and advised the
Union "turkey money" would not be paid then or at
any future time.
The contract contains a "zipper" or wrapup
clause which reads:
It is acknowledged that during negotiations
which resulted in this agreement, the Union had
the unlimited right and opportunity to make de-
mands and proposals with respect to all proper
subjects of collective bargaining. Therefore, for
the life of this agreement, the Union agrees that
the Company shall not be obligated to bargain
collectively with respect to any subject or matter
not specifically referred to or covered in this
agreement.
Respondent argues that the inclusion of this clause in
the contract, particularly in light of an unsuccessful
Union attempt, during negotiations, to convince Re-
spondent to include in the contract a clause preserv-
ing all existing benefits, demonstrates that there was
no intent that the "turkey money," which is nowhere
referred to in the agreement, was to be a contractually
agreed-upon benefit. The Union contends on the oth-
er hand, that there was never any intent that Respon-
dent was to be permitted unilaterally to discontinue
this benefit. Respondent urges that the dispute, in any
event, should be remitted to the arbitration procedure
established by the contract for the determination of
1161
contractual disputes.
The Trial Examiner rejected Respondent's con-
tentions and found the violation as alleged, relying, as
do our colleagues, on the principle that there must be
a "clear and unequivocal" waiver of the, right in-
volved. We do not agree. Where the parties, as here,
have engaged in the collective-bargaining process, as
contemplated by the statute, and have executed a col-
lective-bargaining agreement, setting forth the terms
of their bargain, we are unwilling to ignore what has
taken place at the bargaining table and decide the
parties' dispute on the basis of a simplistic formula
arrived at by this Board.
While in some situations the rule of "clear and
unequivocal" waiver may be a realistic appraisal of
the bargain reached, in other situations it may not be.
The answer does not, in our view, call for a rigid rule,
formulated without regard for the bargaining pos-
tures, proposals, and agreements of the parties, but
rather, more appropriately, should take into consider-
ation such varied factors as (a) the precise wording of,
and emphasis placed upon, any zipper clause agreed
upon; (b) other proposals advanced and accepted or
rejected during bargaining; (c) the completeness of
the bargaining agreement as an "integration"-hence
the applicability or inapplicability of the parol evi-
dence rule; and (d) practices by the same parties, or
other parties, under other collective-bargaining agree-
ments. These are but a few of the many factors that
could and would be considered by an arbitrator.'
Since the collective-bargaining agreement, and the
events surrounding its execution, are at the heart of
the disagreement, we would, as we did in Collyer Insu-
lated Wire, 192 NLRB No. 152, defer our decision to
the parties' contractual settlement procedures.
REMEDY
Without prejudice to any party and without de-
ciding the merits of the case, we shall dismiss the
complaint, but shall retain jurisdiction over the dis-
pute solely for the purpose of entertaining appropriate
and timely motions for further consideration upon a
proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of this
Decision, been resolved by amicable settlement in the
grievance procedure or submitted promptly to arbi-
tration, or (b) the grievance or arbitration procedures
have not been fair and regular or have reached a result
which is repugnant to the Act .2
1 Such issues have for many years been dealt with by arbitrators. See, for
example , Indianapolis Union Printers, 46 LA 1077 ( 1966) (employer held,
under facts there, not obligated to continue Christmas bonus not mentioned
in contract); Stepan Chemical Co, 45 LA 34 (1965) (employer held, under
facts there , obligated to continue Christmas bonus not referred to in con-
tract)
2 Spielberg Manufacturing Company, 112 NLRB 1080; 'Collyer Insulated
Wire, supra.
199 NLRB No. 137
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed; provided, however
that:
Jurisdiction of this proceeding is hereby retained
for the limited purposes indicated in that portion of
our Decision and Order herein entitled "Remedy."
MEMBERS FANNING and JENKINS, dissenting:
The majority here extends its Collyer policy, of
deferring to arbitration issues which do or may possi-
bly involve issues of contract interpretation, to a case
in which no contract interpretation can conceivably
be involved.
Respondent has paid its employees each year for
13 years prior to 1970 a cash bonus totalling $30 "tur-
key money" to each employee at Thanksgiving and
Christmas. The complaint alleged that by unilaterally
ending this bonus in 1970 Respondent refused to bar-
gain with the Union as required by Section 8(a)(5) of
the Act.
Respondent concedes it terminated the bonus
without discussion with the Union. It points to no
specific substantive provision in the union contract
which gives it the right to do so, and the majority
likewise finds no such specific authority in the con-
tract. Instead, Respondent asserts that the general
"zipper" clause in the contract amounted to a waiver
by the Union, permitting the Employer to make uni-
lateral changes in any term or condition of employ-
ment not specifically foreclosed by the contract. The
majority agrees that this is the issue, and from this
concludes that its resolution involves only an inquiry
into the meaning of these clauses, a question of "con-
tract interpretation" appropriate for arbitration.
The Board and the courts, however, have held
that, as a matter of legal principle, and regardless of
the broad and inclusive language of such general and
catchall clauses, they do not amount to a sufficiently
clear waiver of the employees' interest in specific indi-
vidual existing terms and conditions of employment
to allow the employer to terminate beneficial condi-
tions without bargaining with the union.' This princi-
ple is grounded in the purpose of the Act, "to
encourage the practice and procedure of collective
bargaining," and its corollary, that all substantial
J Unit Drop Forge Division Eaton, Yale & Towne Inc., 171 NLRB 600, Webb
Furniture Corporation, 158 NLRB 1003 ; Rockwell-Standard Corporation,
Transmission and Axle Division, Forge Division, 166 NLRB 124 , Tide Water
Associated Oil Company, 85 NLRB 1096 ; The Timken Roller Bearing Co v
N.LR.B., 325 F .2d 746, 751 (C.A. 6), cert denied 376 U.S. 971, N.L. R.B. v.
Perkins Machine Company, 326 F .2d 488 (C.A. 1); N.L.R.B v. The Item
Company, 220 F 2d 956, 958-959 (C.A. 5), cert. denied 350 U S 836 , rehear-
mg denied 350 U.S. 905.
changes in existing terms of employment should be
bargained out with the union unless there has been a
specific waiver of bargaining on that particular mat-
ter. Thus, any "interpretation" or "meaning" assigned
to these clauses by an arbitrator which would make it
a waiver of bargaining over the bonus would necessar-
ily be repugnant to the Act, and thus of no effect
under Spielberg.4
It is the majority's position that the "clear and
unmistakable" waiver rule is "a simplistic formula
arrived at by this Board" and should be modified to
include many other factors, such as proposals ad-
vanced or rejected during bargaining, thus eliminat-
ing the rule for all practical purposes. Contrary to the
majority, the statutory obligation of an employer to
refrain from unilateral conduct in the absence of a
specific waiver is not merely a "rigid rule" enunciated
and enforced by this Board. The Board's holding to
this effect has been affirmed by the Supreme Court of
the United States in N.L.R.B. v. C& C Plywood Corpo-
ration, 385 U.S. 421, reversing 351 F.2d 224 (C.A. 9),
and in N.L.R.B. v. Acme Industrial Co., 385 U.S. 432,
and in decisions of the circuit courts of appeals too
numerous to require citation. By refusing to assert the
Board's jurisdiction in this case the majority attempts
to reverse those decisions and, indeed, suggests that
the rule, carrying the approval of the Federal courts,
including the Supreme Court, needs changing by an
arbitrator. The "simplicity" deplored by our col-
leagues is the rule in other areas of the law. Indeed,
the majority's reliance on a complex array of factors,
including such seemingly remote and irrelevant ones
as "practices by other parties under other contracts,"
well illustrates the reason for and wisdom of the rule.
The parties are, in fact, not in any dispute over
the meaning of the contract clauses. It may be con-
ceded, arguendo, that the clauses purport to allow the
Respondent to terminate the bonus since the bonus is
not specifically granted by any contract clause. The
Union does not assert that any contract clause was
violated by termination of the bonus, and the Respon-
dent points to no contract clause authorizing termina-
tion of an existing term of employment except the
catchall zipper clause quoted by the majority. Re-
spondent and the Union thus agree that the issue
between them is the legal capacity of this clause to
constitute a waiver of bargaining over existing em-
ployment terms as to which the contract is otherwise
silent. This is a question only the Board can answer-
at least heretofore.
In these circumstances, and under the Board's
existing legal principles of what can constitute a waiv-
er, there is no contract interpretation issue upon
4 Spielberg Manufacturing Company, 112 NLRB 1080.
c
RADIOEAR CORPORATION 1163
which an arbitrator's conclusion can be of any aid or
guidance to us. In deferring to arbitration, the majori-
ty indicates it is willing to accept an award holding
these clauses can and do amount to a waiver of bar-
gaining. Such award will override the Board's deci-
sions, cited above, that as a matter of law the clauses
cannot amount to a waiver. The result will open the
door to an erratic lack of uniformity in areas in which
legal principles rather than contract interpretation are
at issue. Even worse, this action extends Collyer into
fields in which arbitrators have no special compe-
tence, and in which the Board and the courts have the
expertise of experience and qualification, and the stat-
utory duty of decision. In the guise of promoting vol-
untarism and privately agreed-on solutions, the ma-
jority is in fact eliminating the bargaining the Act
encourages and allowing one of the parties to contract
himself out of the Act. This decision is another exam-
ple of the use of the Collyer principle to destroy stat-
utory rights and undercut bargaining.
We would therefore not defer this case to arbitra-
tion, but would decide the legal issue-and the only
issue-it presents.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held before the duly desig-
nated Trial Examiner on July 13, 1971, at Pittsburgh, Penn-
sylvania, on complaint of the General Counsel against
Radioear Corporation, herein called the Respondent, or the
Company. The charge was filed on February 11, 1971, by
International Union of Electrical, Radio and Machine
Workers, Local 633, AFL-CIO-CLC, herein called the Un-
ion, and the complaint issued on May 12, 1971. The sole
issue of the case is whether the Respondent violated Section
8(a)(5) of the Act by its unilateral action in discontinuing
payment of a Thanksgiving Day and Christmas Day cash
bonus to its employees in the year 1970. Briefs were filed by
the General Counsel and the Respondent.
Upon the entire record, and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Radioear Corporation, a Delaware corporation, is en-
gaged in the manufacture of electronic hearing aids, and has
its principal place of business in Canonsburg, Pennsylvania.
During the 12-month period immediately preceding the
complaint, Respondent purchased and received goods and
materials valued in excess of $50,000 directly from points
outside the Commonwealth of Pennsylvania, and shipped
goods and materials valued in excess of $50,000 directly to
points outside the State. I find that the Respondent is en-
gaged in commerce within the meaning of the Act and that
it will effectuate the policies of the Act to exercise junsdic-
tion herein.
11 THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Status of the Respective Parties
Under the corporate name, Radioear Corporation, the
Respondent, as already stated, operates a plant for the man-
ufacture of electric hearing aids. This business has been in
existence, apparently in the same form, for more than 15
years and was purchased in its entirety on October 31, 1969,
by the Esterline Corporation, a New York City-based hold-
ing company. The financial situation was then reorganized
so that this particular company became a wholly owned
subsidiary of Esterline Medical Corporation, which in turn
is a wholly owned subsidiary of the Esterline Corporation.
There is also indication that, for reasons unrelated to the
question here presented, the purchaser formed a new corpo-
ration to run the business, the new one also called Radioear
Corporation, as was the predecessor company. The "em-
ploying enterprise" as originally constituted has been con-
tinued without change, and no contrary contention is
advanced. The Respondent does business at the same loca-
tion, uses the same employee complement, produces the
same products and sells to the same customers.
The complaint alleges, the answer admits, and I find
that all production and maintenance employees, including
quality control department and dealer service department
employees, employed at the Respondent's Canonsburg
plant, but excluding laboratory employees, sales depart-
ment employees, accounting department employees, office
clerical employees and guards, professional employees and
supervisors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
The employees in this rank-and-file unit voted on No-
vember 26, 1969, in a secret Board-conducted election, and
a majority of them cast ballots in favor of collective-bar-
gaining representation by the International (IUE) Union.
Thereafter, on December 5, 1969, the Board's Regional Di-
rector certified that labor organization as the exclusive bar-
gaining agent for all the production and maintenance
employees in this unit.
Again, the complaint alleges, the answer admits, and I
find that from January 5, 1969, and at all times since, the
Union has been, and now is, the exclusive representative of
all employees in said unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
Regular and proper negotiations followed and on April
5, 1970, the parties signed a comprehensive collective-bar-
gaining agreement, effective from March 16, 1970, to March
15, 1973. The Union party to the contract is the IUE and
its Local 633.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Thanksgiving and Christmas Day Bonus as an
Established Condition of Employment
For at least 15 years, from 1956 through 1969, both
dates included, the employees in this entire bargaining
unit-about 95 persons-received $15 in cash from the Em-
ployer, both on the last workday before Thanksgiving and
on the last workday before Christmas, called "turkey" mon-
ey. It will be noted that this money was also paid in the year
1969, after the Respondent had succeeded to the earlier
owners of the business. From 1956 through 1966, the em-
ployer withheld income tax payments due with respect to
the $30 it paid each year; but, for the years 1967, 1968, and
1969, tax deductions were withheld only from $5 of the $30
so paid annually.
No such money, either for Thanksgiving or for Christ-
mas, was paid in 1970. It is conceded that the decision to
discontinue these payments was taken by the Respondent
without prior consultation with the Union, and the com-
plaint alleges that such unilateral action was a change in
conditions of employment unilaterally made and therefore
in violation of Section 8(a)(5) of the Act, which imposes a
duty on employers to discuss all working conditions with
the established exclusive bargaining agent of its employees.
The defense advances a number of arguments. The first is
that this bonus bore no relationship to work compensation,
that it was only,a gift, and that therefore it was not a matter
of employment falling in the area of bargainable matters at
all. Second, the Respondent asserts that, assuming the bo-
nus was a condition of employment, it did bargain with the
Union about the matter, as the law might require. A final
argument is that the Union waived its right to be consulted
about any change the Company might choose to make in
this regard during the contract term.
C. The Pertinent Facts
There is no significant question of credibility pre-
sented; all witnesses were fundamentally candid and hon-
est. The issue really evolves into a question of law.
On Wednesday, November 25, 1970, the day before
Thanksgiving, the time when the first bonus had always
been paid, a rank-and-file employee mentioned the fact to
David Stumm, executive vice president of the Respondent,
and received a noncommittal answer. The following Mon-
day, Marge Wonderling, the Union's field representative,
telephoned Richard Taylor, the vice president of manufac-
turing, to ask why the bonus had not been paid. She testified
he told her the Company planned to discontinue it, but in
view of the Union's concern he would look into the matter
again . As Taylor recalled it, he answered he "didn't know
exactly what the situation was," but would advise her later
about the Company's position. It matters little, in light of
the total evidence, but I believe Taylor did tell the union
agent an advance decision had been made. Stumms , testify-
ing in defense , said unequivocally that when he learned of
the bonus practice, weeks before Thanksgiving, he checked
with New York and was told definitively the policy was not
to pay it, and that he did as he was told-"nothing."
Not hearing from him, Wonderhng called Taylor again
about 10 days later, and testified he said he still had no
definite word. Taylor's testimony is he did tell her of certain
decisions, but again the matter is of small moment, for it is
clear that on December 10 the Company sent a letter on the
subject to the Union, and it clarifies the issue well enough.
The letter reads:
The Union's objection to the fact that no "turkey"
money was paid at Thanksgiving has been carefully
considered.
Please be advised that the Company's position on
this matter is not irrevocable, and we are willing to
meet with the Union to discuss the matter, as well as
the question of the payment of "turkey" money on any
future occasions. You might just as well know at this
point that we do not plan to pay "turkey" money at
Christmas time, or on any holidays in future years.
Wonderling first saw this letter on about December 20,
because she had been away from her office. She then com-
municated with company representatives and a conference
was arranged in the office of the Respondent's lawyer.
Meanwhile, Christmas came and went and the Company,
without further communication with the Union, failed to
pay the Christmas bonus as well.
The parties met on January 12. Wonderling was ac-
companied by the employee officers of the Local Union and
Robert Randolph, the company lawyer, by certain officials.
Randolph said he went to the meeting ready to compromise
the whole question by paying $15 to each employee-nom-
inally the Thanksgiving bonus-m full satisfaction of all
claims, present and future, and that he hoped to provoke the
Union's representatives themselves into proposing that
amount in full settlement. Wonderling got the message and
went into caucus with her people; the upshot was that she
suggested $30 in cash now and something else in the future
in place of any further bonuses. The Company was not
receptive and no further details of what the Union had in
mind were aired. Neither party thereafter requested further
meetings and the Union filed its charges.
D. Analysis and Conclusion
The Respondent misconceives established Board law
both as to what is included in the statutory term "conditions
of employment," and what the duty to bargain means in
situations of this type. The Board has long held, with court
approval, that a bonus paid to employees, Christmas or
otherwise, is a condition of employment and a proper sub-
ject of collective bargaining under this statute. Singer Manu-
facturing Co., 24 NLRB 444, enfd. 119 F.2d 131 (C.A. 7)
cert. denied, 313 U.S. 595. Niles-Benent-Pond Co., 97 NLRB
165, enfd. 199 F.2d 713 (C.A. 2). And the fact that all
employees in this instance were paid the same $15 amount,
regardless of length of service, individual production per-
formance, or other personal qualification, does not remove
the cash payment from the area of work remuneration. As
the Board said in General Telephone Company of Florida, 144
NLRB 311: "The fact that the amount of the Christmas
checks was not related directly to employees' earnings does
not warrant a different result. A direct or indirect relation-
ship to other wages may, of course, serve to strengthen
employees' reliance on continuation of the practices and
RADIOEAR CORPORATION
their treatment of the checks or bonus as wages. However,
this factor is not controlling."
To support its contention that the two bonuses in-
volved in this case must be viewed as no more than gratui-
ties, not at all related to work compensation, the Respon-
dent relies on a single Board decision, Tote Systems Division,
187 NLRB 428, where the Board dismissed the complaint
after finding the Christmas money there paid to be a gift.
For reasons fully explicated in the General Counsel's brief,
I am satisfied Tote turned on the special facts of the case
and was not intended to reverse the long body of law deal-
ing with established and fixed bonuses. More in point is
Hooker Chemical Corp., 186 NLRB 304. See, also, Gravens-
lund Operating Co., 168 NLRB 513.
It follows that the Respondent was required in law-as
specified in Section 8(d) of the Act-to discuss with the
Union its plan to discontinue this one emolument for work
long enjoyed by its employees, in exactly the same way it
must consult the majority representative with respect to any
other condition of employment, be it wages or other forms
of compensation. If there is one prerogative conferred upon
the exclusive bargaining agent, it is the right to speak with
the employer about work matters in advance of any sub-
stantive changes, and the principle hardly justified citation
of authority at this late date. And, because this right in the
Union is a statutory one, any waiver on its part must be
evidenced by "clear and unmistakable" or "clear and une-
quivocal" language.' When the parties were negotiating
their present contract, early in 1970 after the successor cor-
poration had taken over the business, the Union proposed
a clause reading: "All benefits and privileges in effect prior
to this agreement will continue in effect unless amended or
changed herein." The Company refused to incorporate this
language into the contract and the matter was abandoned.
The parties did include in their contract a clause reading:
"It is acknowledged that during negotiations which resulted
in this agreement, the Union had the unlimited right and
opportunity to make demands and proposals with respect to
all proper subjects of collective bargaining. Therefore, for
the life of this agreement, the Union agrees that the Compa-
ny shall not be obligated to bargain collectively with respect
to any subject or matter not specifically referred to or cov-
ered in this agreement." The Respondent now argues that
by its failure to convince the Company to accept its suggest-
ed language, and by accepting the latter contract clause, the
Union impliedly agreed the Company should be free to
make whatever changes it pleased in whatever benefits and
privileges might have been encompassed by the phrase, dur-
ing the 3-year period of the agreement. I find the argument
unpersuasive.
In comparable situations, also involving "wrap-up or
zipper" clauses, the Board has said: " . . . even when a
`waiver' is expressed in a contract in . . . sweeping terms
. it must appear from an evaluation of . . . negotiations
that the particular matter was discussed or consciously ex-
plored and the union consciously yielded or clearly and
' Tide Water Associated Oil Company, 85 NLRB 1096: "We are reluctant
to deprive employees of any of the rights guaranteed them by the Act in the
absence of a clear and unnustakable showing of a waiver of such rights." See
also Hekman Furniture Company, 101 NLRB 631: "[T]he Board will not, in
any event , give effect to any purported waiver of such right , unless it is
expressed in clear and unmistakable terms."
1165
unmistakably waived its interest in the matter." Unit Drop
Forge, 171 NLRB 600. Of critical importance here, there-
fore, is the stipulation of the parties that throughout the
bargaining negotiations leading to the contract, no mention
was ever made by anyone about these holiday bonuses.
Clearly there could not have been any conscious intention
to surrender to the employer any statutory rights by the
Union. Again, in its brief the Respondent relies upon one
case only, and that is one in which the Board reaffirmed the
principle set out above, only to be reversed by the court.
N. L. R. B. v. Southern Materials Co., 447 F.2d 15 (C.A. 4).
The Trial Examiner follows Board law.
As to the argument that failure to win its own proposed
language into the contract now precludes the Union from
affirming a statutory right, see Timken Roller Bearing, 138
NLRB 15: " . . . the union did not surrender its right to
secure any of the wage data simply because it was unsuc-
cessful in obtaining a provision in the contract requiring the
production of such data by the Respondent. We can infer
no `clear and unequivocal' waiver of a statutory right from
such failure at the bargaining table."
The Respondent's final defense-that it did bargain
with the Union representative about both the bonuses-
presupposes there is no difference between discussing
changes in working conditions before they are decided and
implemented by the employer, or after the event. The deci-
sion to discontinue the Thanksgiving bonus and the act of
not paying it, both came without advice to the Union, strict-
ly unilaterally, and it is no less clear that the decision not
to pay the Christmas bonus was also a fixed position de-
termined by management in advance of the event and with
a conscious intent not to permit the Union any say in the
matter. Wonderling, the field representative, complained to
Taylor after Thanksgiving about that money not having
been paid. When Taylor, 10 days later, responded to that
inquiry-whether he did it on the phone or by letter-he
added something about the Christmas bonus due 2 weeks
later. His words-the written ones in the letter, as to which
there can be no dispute-left no doubt that matter was a
closed book so far as the Company was concerned. "You
might just as well know at this point that we do not plan to
pay "turkey" money at Christmas time.... " His other
words in the December 10 letter, that "this matter is not
irrevocable," related directly to abolishment of the
Thanksgiving money, which was already an accomplished
fact.
If the later conference in the lawyer's office on January
12 be viewed in the best possible light from the point of view
of the Respondent, it could be said that the Respondent
discussed both bonuses with the Union agents that day. The
decision to change the long-existing condition of employ-
ment was made by the Company, and therefore the duty to
bargain fell primarily upon that party to the collective-bar-
gaining relationship which wanted to change existing condi-
tions. It is therefore significant to start with that the January
conference only came about because Wonderling sought it.
Even then, after Christmas had passed, the Respondent
evinced no desire to discuss anything with the Union. She
had to call Taylor, or his lawyer, to ask for a meeting date,
although the burden for inviting bargaining in the circum-
stances rested upon the Company. Randolph took pains at
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing to deny speaking to Wonderling at all before
Christmas; his purpose was to show the Union had failed
to request bargaining about the Christmas bonus before the
Respondent put its unilateral decision into effect . Indeed,
he asks dismissal of the complaint pro tanto on that ground.
But a union is not estopped from complaining about em-
ployer conduct which violates the statutory duty to bargain
merely because it did not take steps to prevent the act before
it happened.
In January, Randolph did say he had an open mind,
but I do credit Wonderling's testimony-not really contra-
dicted by the Respondent's witnesses-that when she an-
swered, after the union caucus , that they would accept $30
now and something to "buy out" future bonuses, the
Company 's reaction was to shut off further talk. The
lawyer's own testimony indicates persuasively the Company
came to the meeting with a closed mind , determined that if
its $15 offer were not accepted the matter would end there.
But all this only exemplifies what is more likely to
happen when talk about unilateral changes in employment
conditions comes after the deed has been consummated.
The true purpose of collective bargaining is to reduce possi=
ble friction by providing a forum for exchange of ideas in
advance of industrial conflict. And this is why the Supreme
Court in Fibreboard Paper Products Corp. v. N.L.R.B., 379
U.S. 203 , in enforcing a Board order restoring the status quo
after unilateral changes made by the employer , said that
"meaningful bargaining" cannot come after the event.
I find that, by its unilateral action in failing to pay the
established $15 Thanksgiving and Christmas bonuses to the
employees included in the production and maintenance
unit, the Respondent violated Section 8(a)(5) and ( 1) of the
Act.
THE REMEDY
Effectuation of the policies of the Act requires that the
Respondent be ordered to pay to each employee at work in
the production and maintenance unit on Thanksgiving
1970, and on Christmas 1970, $15 as bonus for each of these
holidays, with interest at 6 percent. The Respondent must
also be ordered hereafter to cease and desist from making
unilateral changes in conditions of employment without
first bargaining with the recognized union about such
changes.
CONCLUSIONS OF LAW
1. The Respondent and the Union are, respectively,
employer and labor organization within the meaning of the
Act.
2. The Union is, and has at all material times herein
been, the exclusive majority representative of all employees
in the production and maintenance unit at the Respondent's
plant.
3. By discontinuing , and not paying to its employees
the long-established Thanksgiving and Christmas bonus in
the year 1970 , without first bargaining about its desire to
make this change with the Union, the Respondent has en-
gaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
[Recommended Order omitted from publication.]