Sevakis Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1979

244 N.L.R.B. 1122 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sevakis Industries, Inc. and Thomas De Ornellas.
Case 7-CA-14832
September 17, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On May 18, 1979, Administrative Law Judge John
M. Dyer issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief and the party in interest, Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, filed an
answering brief on behalf of the Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified below.'
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(5) and () of the
Act by unilaterally establishing and failing to bargain
about a Christmas bonus for its employees repre-
sented by the Union, and by paying the bonus only to
nonstriking employees, and Section 8(aX3) and (I) of
the Act by refusing to pay the bonuses to striking
employees. For the reasons set forth below, however,
we do not adopt the Administrative Law Judge's find-
ing that former employee Azzopardi was entitled to a
Christmas bonus.
Respondc- t discharged Don Azzopardi, who had
been one of the Union's in-plant organizers,2 on De-
cember 8, 1977. Later that day, in response to the
discharge, employees went on strike. On December
14, 1977, Respondent paid a Christmas bonus, based
on calendar-year wages, to five unit employees who
did not participate in the strike. Neither Azzopardi
nor the strikers received the bonus. Respondent in the
past had paid a bonus to employees who were on the
payroll when the bonuses were paid, but who had
I The Administrative Law Judge recommended that Respondent be or-
dered to cease and desist only from discriminatorily denying bonuses to
employees because of their involvement in a strike. In view of our adoption
of the Administrative Law Judge's findings that Respondent unlawfully re-
fused to bargain with the Union, we shall also order that Respondent cease
and desist from engaging in such conduct. In addition, we shall order Re-
spondent to cease and desist from violating the Act "in any other manner" as
we find that, since Respondent had previously been found to have com-
mitted violations and has been subjected to a broad order, the present case
meets the standards of Hickmott Foods, Inc., 242 NLRB 1357 (1979), for a
broad order.
2 The discharge was not alleged to be a violation of the Act.
interrupted their employment with Respondent ear-
lier in the year for various reasons.
The Administrative Law Judge concluded that
since "Azzopardi had worked for a period of time to
qualify himself for the bonus" he, like the striking
employees, was entitled to a Christmas bonus. In so
concluding, the Administrative Law Judge noted that
Respondent's failure to pay Azzopardi a bonus was
inconsistent with its past practice of paying a bonus
to employees who had left Respondent's employ, but
who had returned prior to the distribution of the bo-
nuses. We disagree with the Administrative Law
Judge's conclusion that Azzopardi was entitled to the
bonus.
Azzopardi's employment status is clearly not com-
parable to that of the strikers, as they, unlike Azzo-
pardi, remained employees of Respondent while on
strike and thus were employees at the time the bo-
nuses were distributed.' We also find, contrary to the
Administrative Law Judge, that Azzopardi's situation
is also distinguishable from that of employees whose
employment was interrupted for a period of time at
some point during the year as in those instances the
employees were on the payroll when the Christmas
bonuses were distributed, while Azzopardi was not.
Furthermore, the Administrative Law Judge appar-
ently ignored the uncontroverted testimony of Re-
spondent's executive vice president, Sevakis, that bo-
nuses were paid only to those employees who were on
the payroll when the bonuses were distributed.
Sevakis' testimony was substantiated by Respon-
dent's payroll records, which were entered into evi-
dence. Thus, these records show that employees Pap-
pas, McGruffie, Sagituna, Morrison, and Nix quit on
November 25, 1967; October 10 and November 14.
1974; and September 2 and September 13, 1976. re-
spectively, and were not paid a bonus. Similarly, em-
ployees McFarland, Mierluesk, Wood, and Linday
were fired on November 13, 1969; August 13 and Oc-
tober , 1975; and October 26, 1977, respectively, and
did not receive a bonus. It is thus apparent that Re-
spondent's failure to pay Azzopardi the bonus was
consistent with its policy of paying a bonus only to
employees who were employed by Respondent on the
date the bonuses were paid. Accordingly, we find that
Azzopardi is not entitled to the bonus.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
3 N.LR.B. v. Fleerwood Trailer Co., Inc., 389 U.S. 375, 380 381 (1967):
The Laidlaw Corporation v. N.L.R B., 414 F.2d 99. 104 105 (7th Cir. 1969)
rehearing denied and reheanng en bane denied September 2. 1969, cert de-
nied 397 U.S. 920 (1970).
244 NLRB No. 174
1122
SEVAKIS INDUSTRIES. INC.
tions Board hereby orders that the Respondent,
Sevakis Industries, Inc., Redford Township, Michi-
gan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America. hereinafter the
Union, or any other labor organization, by discrimi-
natorily denying a bonus distribution to employees
because of their participation in a strike.
(b) Refusing to bargain with the Union, on re-
quest, in regard to Christmas bonuses, their formula,
payment, eligibility therefor and the like, for employ-
ees in the following appropriate bargaining unit:
All full-time and regular part-time production
and maintenance employees including shipping
and inspection employees and truck drivers em-
ployed by the Employer at its Detroit, Michigan,
facility; but excluding all office clerical employ-
ees, professional employees, guards. and supervi-
sors as defined in the Act.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Make whole the following employees for the
losses suffered by reason of Respondent's discrimina-
tion against them, in the manner set forth in the sec-
tion of the attached Decision entitled "Remedy":
Zymund Nowicki
Harry Kruse
Rick Chesney
Gerald Adkisson
Mario Melonio
Garland Horton
Philip Abbot
Thomas De Ornellas
Ronald Danielson
Gary Twigg
Frank Swastek
Donald Hemingway
Dennis Ellison
Guyles Agy
Donald Gardner
Norman Azzopardi
Dennis Lambert
Daniel Valicento
Kenneth Ratkos
(b) Upon request, bargain with the Union con-
cerning Christmas bonuses, their formula, payment,
eligibility therefor, and the like for employees in the
appropriate unit described above.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary for determination of the
amount of payment due under this Order.
(d) Post at its place of business in Redford Town-
ship. Michigan, copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 7, after
being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other mate-
rial.
(e) Notify the Regional Director for Region 7. in
writing, within 20 days from the date of this Order.
what steps Respondent has taken to comply herewith.
I In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which the company. the
union, and the General Counsel of the National La-
bor Relations Board participated and offered evi-
dence, it has been found that we violated the Act. We
have been ordered to post this notice and to abide by
the following:
Section 7 of the National Labor Relations Act.
as amended, gives all employees the following
rights:
To engage in self-organizing
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
In recognition of these rights, we hereby notify
our employees that:
WE WILL NOT discourage membership in Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica, or any other labor organization, by discrimi-
natorily denying a bonus distribution to employ-
ees because of their participation in a strike.
WE WILL NOT refuse to bargain with the
Union, on request about Christmas bonuses for
employees in the bargaining unit described be-
I 1123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
low, and WE WILL. NOI unilaterally set the for-
mula, eligibility, etc., for the Christmas bonus.
The unit is:
All full-time and regular part-time production
and maintenance employees including ship-
ping and inspection employees and truck driv-
ers employed by the Employer at its Detroit,
Michigan, facility; but excluding all office
clerical employees, professional employees,
guards, and supervisors as defined in the Act.
WE WILI. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed under Section 7 of the
Act.
WE WILL make whole the striking employees
for losses suffered by reason of their being dis-
criminatorily excluded from the December 1977
bonus distribution, plus interest thereon.
WE WILL, upon request, bargain with the
Union in regard to Christmas bonuses, their for-
mula, payment, eligibility therefor, and the like
for the employees in the bargaining unit de-
scribed above.
SEVAKIS INDUSTRIES, IN(C.
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: Thomas De
Ornellas filed the original charge on February 8, 1978,' and
an amended charge on March 17 alleging that Sevakis In-
dustries, Inc., herein called the Company or Respondent,
violated Section 8(a)(1), (3). and (5) of the Act. The com-
plaint alleges that Respondent violated Section 8(a)(5), (3),
and (I) by not bargaining about and unilaterally granting a
Christmas bonus to certain of its employees and by refusing
to grant it to its other employees who were then on strike.
Respondent's answer admits the service and commerce
allegations, the supervisory status of its President Frank
Sevakis and its Executive Vice President and Secretary-
Treasurer Dennis Sevakis, the existence of a production
and maintenance unit at its Detroit, Michigan, facility and
that the employees designated International Union, United
Automobile, Aerospace and Agricultural Implement Work-
ers of America, herein called the Union, as their collective-
bargaining agent in a National Labor Relations Board elec-
tion on August 5, but denied that it had violated the Act.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses and to argue orally at
the hearing held in Detroit, Michigan, on July 24, 1978.
Briefs have been received from all parties. The principal
question is whether Respondent by its refusal to pay a
Christmas bonus to striking employees violated the Act.
This question must be answered affirmatively.
I Unless specifically stated otherwise, the events herein occurred dunng
the fall of 1977 and the early part of 1978.
On the entire record in this case, including the exhibits
and testimony, and on my evaluation of the reliability of
the witnesses, I make the following:
FINDINGS OF FAC(I
I. COMMERCE FINDINGS AND UNION SIAIUS
Respondent is a Michigan corporation with its principal
place of business in the suburbs of Detroit where it manu-
factures. sells and services diesel engine parts. During the
calendar year 1977, it received at its plant engine parts,
materials and other goods and materials, valued in excess of
$50,000, directly from points outside the State of Michigan.
Respondent concedes, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent concedes, and I find, that the Union herein is
a labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Respondent began its operations in 1959 and, according
to its founder and president, Frank Sevakis. either that year
or the following year began paying its employees a Christ-
mas bonus. These bonuses were paid until 1967 when he
began a profit-sharing plan and that year he placed the
funds, including that which would have gone for bonuses,
into the profit-sharing plan. Frank Sevakis testified that the
employees complained about it since they had assumed
they would get a Christmas bonus and were unhappy when
they did not. In the following year, 1968, Sevakis split the
money and put half into the profit-sharing plan and the
other half into a Christmas bonus. He determined the
amounts of the bonus based on the previous year's opera-
tions, what their prospects were, the length of time employ-
ees had been with him, their worth to the Company and
what he considered to be their loyalty to the Company.
This split system continued until 1976, with the Christmas
bonus being declared and paid somewhere in the month of
December from dates ranging as early as December 5 to the
second or third week in December. In 1976, the employees
asked Frank Sevakis to discontinue the profit-sharing plan
and after securing Internal Revenue Service's approval, the
profit-sharing plan was discontinued and the money in that
plan was distributed to the employees. This occurred in the
first half of 1977. The 1976 bonus was not large because the
Company had made little profit according to Sevakis.
By late November or early December 1977, Frank
Sevakis had decided on how to calculate the Christmas bo-
nus for that year. He stated that the formula was based
somewhat on a proposal for a Christmas bonus which Re-
spondent had posted for its employees' comments in July,
but that this proposal had been modified. It did not include
as one of the criterion, loyalty to the Company, but was a
structured formula based on seniority. He also testified that
he got the final figures completely worked out I or 2 days
1124
SEVAKIS INDUSTRIES. IN(.
before the bonus was paid. which was on December 14.
Frank Sevakis said he modified the percentage amounts in
the July proposal and added an amount of $30.00 per se-
niority year to make the bonus bigger than that which had
been paid in 1975.
In June 1977. the Union began an organizing campaign
at Respondent. In July, a petition for an election was filed
by the Union and a National Labor Relations Board elec-
tion was held on August 5, which was won by the Union. In
July, Respondent posted on its bulletin board a notice enti-
tled "Proposed Bonus Plan." As shown below, this pro-
posed bonus plan stated that earned wages for the bonus
pay year and the seniority date would be determined as of
the last pay period in July and paid on the payday follow-
ing December 15.
Based on charges filed by the Union and by individuals,
the Regional Director issued a consolidated complaint in
1977 and the case was heard before Administrative Law
Judge Giannasi in December 1977 and in February 1978.
His Decision, which has since been affirmed by the Board,
found, among other things, that the announcement of this
bonus plan in the midst of a union campaign violated Sec-
tion 8(a)(1) of the Act, since it was calculated to offer the
employees benefits for rejecting the Union.
Respondent filed objections to the conduct of the August
5 election, and it was not until November 9 that the certifi-
cation was issued to the Union. Prior to that time the Union
had asked for certain information from Respondent and
had not received a reply.
On November 22, the first bargaining meeting took place.
It was a general discussion and nothing specific was stated
on economic demands, the Union stating it had no idea of
Respondent's economic picture and benefits and needed
that information in order to formulate a proposal. On No-
vember 30, Respondent's attorney sent a letter to the Union
2 The proposed bonus plan stated:
We are considering the following bonus plan as a replacement for the
discontinued profit sharing plan. We invite your comments and criti-
cisms prior to the final formulation and implementation. The amount
paid to an hourly employee would be based on earned wages. Earned
wages do not include vacation or holiday pay, bonus pay, cost of com-
pany paid benefits or company FICA contributions. The bonus amount
would be calculated using the following formula:
Bonus S - Earned wages x Senionty %
The senionty percentages would be as given in the table below:
Seniority Per
At least six months but less than
one year 1%
At least one year but less than
three years 3%
At least three years but less than
five years 4-1,
At least five years but less than
ten years 6%
Ten years or more 7%
rentage
/2%
This amount would be paid on the regular pay day falling on or after
the 15th of December. Earned wages for the bonus pay year would be
determined as of the last pay period in July. Seniority would be based
on the closing date of the same pay period. Management would retain
the option of reducing or eliminating the bonus payment should ex-
tremely poor economic or financial conditions warrant this drastic ac-
tion.
Please submit your (no nonsense) comments in writing. Please do so by
9/15/77
giving wages and the general benefits. down to and includ-
ing free coffee, but making no mention whatever of Respon-
dent's Christmas bonuses as an employee benefit. A second
negotiation meeting was held on December 6 and a third on
December 8. At the beginning of the meeting on December
8. it was announced that one of the Union's in-plant orga-
nizers, Azzopardi. had been fired b Respondent. he
union negotiating team called off the meeting, scheduled an
emergency employee meeting, and they decided to strike.
The plant was struck at noontime on December 8.
On Monday, December 12, Frank Sevakis announced to
the five working employees that a Christmas bonus would
be paid on December 14 to the employees who were then
working. Frank Sevakis made his calculations for the five
working employees but made no calculations for those who
were on strike.
In a bargaining meeting held in either December or
January., the Union asked whether the Company was going
to make the bonus payments to the strikers and was told
they would not.
During the hearing, Respondent's attorney stated the
Company's position to be that employees had to be on the
"active payroll" when the bonus was paid in order to re-
ceive the bonus. He stated that persons who had quit. who
were fired or who were strikers were not eligible if they were
not working at that time. It was determined that the most
vacation any employee was entitled to was 2 weeks despite
the length of service. Respondent stated that the definite-
ness of a vacation would enable them to pay the bonus to a
vacationing employee but the indefiniteness of a strike or
someone on sick leave would militate against a bonus.
In his testimony, Dennis Sevakis stated that his father
arbitrarily decided on the percentages to be paid employees
in this 1977 bonus and that one employee was paid a flat
rate even though the employee had only been there a short
time. Frank Sevakis stated that he decided who to pay bo-
nuses to and how much to pay. He also stated that if the
employees had not been picketing and had been at work.
they would have qualified for the bonus. In discussing bo-
nuses paid in previous years. Frank Sevakis said that em-
ployees had come to expect the bonuses and that this be-
came clear in 1967 when he had put all the money into the
profit-sharing plan. He also stated that he gave bonuses to
employees who w ere not eligible and that some were "out-
right gifts" to new employees who had only been with the
Company a few weeks.
In reviewing some payroll cards for employees, it was
found that in 1974 an employee named Gardner had quit
Respondent on September 7 and returned to work on Sep-
tember 23. For that year, Gardner got both his profit-shar-
ing amount and a Christmas bonus despite his break in
service. In 1975, an employee named Derwick worked 5
hours in the week ending Sunday, November 9. and did not
work again until the week of December 14. during which he
worked 32 hours. The record shows that he received no pay
whatsoever for those weeks in between and, consequently
was gone more than the limit of a 2-week vacation. I)er-
wick received his 1975 bonus although it could not he deter-
mined from the payroll record whether he had been there
on the dates the bonus was declared and paid. Two other
employees were not in a pay status during the week that the
I 125
DI)E(ISIONS OF NATIONAL LABOR RELATIONS BOARD
bonus was paid in other years, but Respondent guessed that
they might have been on vacation at that time. Previously,
Respondent had indicated that very seldom were vacations
taken during that time of the year.
B. Pitions. Analsi.s and (Conclu.ViOns
Respondent's position is that the Christmas bonus is
completely discretionary and a gift and is not a part of
wages, hours, and working conditions so that it is not
obliged to negotiate concerning it. It states that it sets the
conditions for receipt of the bonus and among those condi-
tions is being on its "active payroll" when the bonus is
announced and when it is paid. It maintained that it never
paid a bonus to anyone who was not on its "active pay roll"
when either the bonus was announced or paid and that
included persons who had quit, who were fired, who were
on strike and possibly those who were sick. It stated that as
far as it knew it had never been confronted with the prob-
lem of a person being on sick leave at the time the bonus
was declared or paid. Respondent stated it would allow a
person who was on vacation to receive the bonus because
the person was gone for a specific period, and in this way it
differentiated those might be sick or those who were strikers
since it did not know when they would return.
Respondent also claimed that employees who were on
strike were really not entitled to the benefit because they
were not in that sense real employees since they might nev-
er return to Respondent, and it made a point of' the fact
that some of the employees who had gone on strike had not
returned to Respondent.
In regard to employee Azzopardi. Respondent took the
position that he had been discharged on December 8 and
therefore could never be entitled to a bonus. The Union
took the position that during negotiations which led to the
contract between the parties, which was ratified on May 12,
it had taken various positions and had traded off one em-
ployee for the other, agreeing that Respondent did not have
to take Azzopardi back and that his termination should be
noted as a quit.
It should be noted that there is no "active payroll" as
such and all this term means is that people were at work.
The General Counsel and the Charging Party take the
position that bonuses are a part of wages, hours, and work-
ing conditions which must be negotiated between the par-
ties and that Respondent's unilateral announcement of its
bonus on December 12 violated Section 8(a)(5) and (I) of
the Act. Further, they state that paying a bonus in this
manner to persons who were not on strike and refusing to
pay it to strikers violated Section 8(a)(3) and (I) of the Act
in the same manner that the Board found in Eleciro Vector,
Inc., 220 NLRB 445. Respondent resisted this case on the
basis that the Ninth Circuit Court of Appeals had declined
to enforce the Board's Order. The General Counsel and the
Union urge that this bonus payment separately violated
Section 8(a)( 1) since it stands as an "object lesson" to em-
ployees not to engage in protected activity.
It is clear from Frank Sevakis' testimony that the em-
ployees had come to regard the bonus payment as part of
their wages, hours, and working conditions and, in fact, on
their own negotiated with Respondent in regard to the bo-
nus payment and that Respondent had acquiesced in the
employees' sentiments regarding the payment of a bonus.
Moreover. the Board has found that payment of a bonus
for a little as 2 or 3 years is sufficient for the Board to
decide that it is a part of wages. hours, and working condi-
tions.
Nowhere did Respondent make clear why the particular
dates on which it announced the bonus and the date that it
paid it were special for any particular reason. 'The tact is
that Respondent was on a fiscal year basis with its year
ending in July and, in its proposed bonus plan on which it
sought employee comments in July. made the wages for the
fiscal year ending in July the basis for payment of a bonus.
Respondent claimed it only modified that proposal by
changing the percentages and adding $30 per year in its
December formula. Contradicting this testimony is other
Respondent testimony that it used the calendar year and
estimated the wages for the last weeks in December in mak-
ing its calculations. It is possible under one interpretation of
Respondent's testimony to say that the fiscal year wages
were the basis of the bonus and therefore had been earned
long before the strike. It is likely that calendar year wages
were used and that the great bulk of the bonus had already
been earned when the strike occurred.
The dates, December 12 and 14. are only significant be-
cause the bulk of the employees were then on strike. Ac-
cording to Frank Sevakis' testimony. he had decided on the
bonus formula and the amounts by late November or early
December and could have announced the bonus then. The
fact of physical payment of the amount is not significant by
date or any' company event. The fact is that the bonus,
under the formula used by Respondent, had in fact been
earned by all the employees by their seniority and by hav-
ing worked to that point. It seems clear that despite Re-
spondent's conflicting testimony about modifying the bonus
proposal of July that Respondent did determine the basis of
the bonus by multiplying a percentage times the annual
calendar year straight-time salary. It would therefore ap-
pear proper for those who were on strike to have the proper
percentages multiplied by the straighttime salary they had
received up until the time they went on strike plus the addi-
tional $30 per seniority year added to the bonus, and I will
so recommend.
It is clear that Respondent violated Section 8(a}(5) and
( I) of the Act by not bargaining about the Christmas bonus
and by unilaterally determining it at a time when the Union
represented the P & M employees and the Union and Re-
spondent were engaged in collective bargaining.
As the Board said in Electro Vector. Inc.. and General
Truck Drivers, Warehousemen & Helper.s Union, Local 980,
International Brotherhood o Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, 220 NLRB 445 (1975).
where the employees had in a sense earned the bonus by
their work and attendance through the year, it would be
inequitable, as well as contrary to the Act, to deprive them
of the bonus because they were on strike at the time the
bonus was declared. Respondent established no legitimate
business reasons for its December 12 and 14 dates or bor
disqualifying the strikers, and in this instance Respondent's
action is inherently destructive of the employees' right to
strlike. Respondent therefore violated Section 8(a)(3) and ( I )
126
SEVAKIS INDUSTRIFS. IN(.
of the Act by withholding the Christmas bonus from the
striking employees, and I so find.
Respondent's version of the termination of Azzopardi
and the result of the negotiations with the Union differs
from the Union's version of its negotiations as to what was
determined in regard to Azzopardi's status. Respondent
seeks to have Azzopardi's status changed as of December 8
when it terminated Azzopardi, and by its lights that termi-
nation was changed to a quit through negotiations. The
Union's version is that through negotiations the problem of
Azzopardi's discharge was negotiated out, and in exchange
for the reinstatement of another employee they agreed to
change the termination to a quit. It would seem that Azzo-
pardi had worked for a period of time to qualify himself for
the bonus, and Respondent's seeking to excise him from
this bonus is inconsistent with its treatment of others over
the years in that one employee who had quit and then later
came back was accorded a bonus, as well as another em-
ployee who was out for some 4 weeks and received a bonus
and was clearly not on vacation during that period of time.
All the employees who went on strike on December 8 are
entitled to the Christmas bonus under the formula devel-
oped by Respondent and shall receive those bonuses
whether they return to Respondent's employ or not, includ-
ing Azzopardi.
Respondent independently violated Section 8a)( I) of the
Act since its withholding of the Christmas bonus from strik-
ers was a threat to all employees not to engage in concerted
activities.
111. THE EFFE('T OF THEill UNFAIR ABOR PRA(I('tS IPt()N
('OMMER( I
The activities of Respondent, set forth in section II and
therein found to constitute unfair labor practices in viola-
tion of Section 8(aX I). (3), and (5) of the Act, occurring in
connection with Respondent's business operations as set
forth in section I, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent violated Section 8(a)(1).
(3), and (5) of the Act by the unfair labor practices set forth
above, I recommend that it be ordered to cease and desist
from violating the Act in the above and other manner and
that it post an appropriate "Notice to Employees" (the Ap-
pendix) so informing its employees.
Respondent shall bargain about Christmas bonuses and
the formula. payment. eligibility therefor etc., with the
Union and pay the bonus to those listed below who were
not present when the bonus was paid due to their strike-
related absence from work, applying the formula or formu-
las used for its 1977 bonus, deducting therefrom onlN the
amounts normally deducted when employees are absent.
which includes the period from December 9 to 31. 1977.
Interest as provided by the Board's formula in Florida Steel
Corporation, 231 NLRB 651 (1977). shall be added to that
payment.
Those who shall receive the bonus payments with interest
are:
Zymund Nowicki
Harry Kruse
Rick Chesney
Donald Azzopardi
Gerald Adkisson
Mario Melonio
Garland Horton
Philip Abbott
Thomas De Ornellas
Ronald Danielson
Gary Twigg
Frank Swastek
Donald Hemingway
Dennis Ellison
Guyles Ag)
Donald Gardner
Norman A72opardi
Dennis Lambert
Daniel Valicento
Kenneth Ratkos
On the basis of the foregoing findings and the entire rec-
ord, I make the following:
CONci. -sioNs nI L\
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(51 and (1) of the Act
by refusing to bargain with the Union about the subject of
Christmas bonuses and by unilaterally establishing the 1977
Christmas bonus, and paying it only to non-striking em-
ployees.
4. Respondent violated Section 8(a)(3) and (1) of the Act
by paying a Christmas bonus to non-striking employees and
refusing to pay the bonus to striking employees.
5. Respondent violated Section 8(a)(1) of the Act by its
action of withholding the Christmas bonus from striking
employees which threatened all employees in their right to
engage in protected activities.
[Recommended Order omitted from publication.]
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