Stroehmann Bros. Co.

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1360 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stroehmann Brothers Company and Bakery, Confec-
tionery and Tobacco Workers International
Union, AFL-CIO-CLC, Local No. 6. Case 4-
CA-12719
29 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON ANI) MEMBERS
HUNTE R ANI) DENNIS
On 24 February 1983 Administrative Law Judge
Stanley N. Ohlbaum issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Charging
Party each filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order. '
The complaint alleged, and the judge found, that
the Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally changing the wages of its
employees in granting a Christmas bonus consisting
of food instead of money. We agree with the judge
that the Respondent's conduct was unlawful, but
only for the following reasons.
The Respondent is a large baking enterprise with
numerous facilities in Pennsylvania, New York, and
Maryland. The Charging Party represents certain
employees at a bread and roll plant in Norristown,
Pennsylvania, and at a roll plant and a cake plant
in Williamsport, Pennsylvania. 2 The following is
based on credited record evidence.
For the 2 or 3 years preceding the events in
question, Joseph Rauscher, the Charging Party's
vice president, administered the Union's day-to-day
affairs. The Union's president, Joseph Balzer, was
out of the office most of that time because he was
suffering from terminal cancer of the throat and
mouth, and required repeated treatment.
For over 40 years, the Respondent had given its
employees, union and nonunion, a Christmas bonus
based on their length of service with the Company.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
lasw judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that the) are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
We hereby correct the judge's finding that the Respondent was ac-
quired by George Weston Limited in 1981. rather than in 1980
2 There is a third facility in Williamsport, a bread plant, which is not
involved in this case.
Under this bonus system, which was not memorial-
ized in the Union's collective-bargaining contract,
the Respondent paid its employees between $5 and
$10 if they had from 1 to 7 years of service, and
paid an additional $2 per year to employees who
had more than 7 years of service.
In the fall of 1981, 3 the Respondent decided to
alter this longstanding practice. The Respondent's
senior vice president in charge of labor relations,
Charles Caffrey, told Rauscher that the Respond-
ent wanted to change the bonus from cash to a
food package, but did not want to do so without
the employees' approval. He asked Rauscher to
check with the employees at the Norristown plant
to see if they would be willing to agree to the sub-
stitution.4 Rauscher agreed to do so and to get
back to Caffrey.
Within a day or two, Rauscher called the Norris-
town shop steward, James Martin, and asked him
to take an informal poll on Caffrey's proposal.
Toward the end of October, Martin informed
Rauscher that he and committeeman Carl Minott5
had taken the poll, and that the employees pre-
ferred to retain the cash bonus. Soon thereafter,
Rauscher telephoned Caffrey at his Williamsport
office and reported the results of the poll. Caffrey
expressed regret at the news, and said, "[I]f that's
the way it is, that's the way it is."
In early December, the Respondent distributed a
gift package of cheese and sausage to its employees
instead of the previous cash bonus." In an accom-
panying letter, the Respondent's president extended
traditional holiday greetings to the employees and
stated that the gift was presented "in the holiday
spirit, in recognition of [the employees'] contribu-
tions, as part of Stroehmann Brothers Company."
Rauscher, after relaying the employees' rejection
of the proposed change in the bonus system, had
heard nothing more of the matter until the Re-
spondent distributed the food package instead of
the cash. He then received a call from Martin, who
reported that the employees were "screaming" be-
cause the gift package had been substituted for the
cash bonus. Rauscher immediately telephoned Caf-
frey, who claimed that the change had been au-
thorized by Balzer.7 Rauscher said he knew noth-
3 All dates are in 1981 unless otherwise indicated.
4 These findings are based on the evidence given by Rauscher, a wit-
ness whose testimony the judge credited, but did not fully recount.
5 We hereby correct the judge's inadvertent error in attributing the
taking of the poll to union business agent Donald Tholan.
I In addition to the gift package, the Respondent gave a new cash
bonus of $30 or $75, depending on seniority, to its unrepresented employ-
ees.
' Caffrey testified that he had spoken with Balzer twice in October
about changing the bonus system, and had received no authorization
during those conversations. However, Caffrey stated that on 7 November
Continued
268 NLRB No. 208
1360
STROEHMANN BROTHERS CO.
ing about any such agreement, and Caffrey sug-
gested that he check with Balzer. Rauscher later
telephoned Balzer who was then in the hospital re-
ceiving additional treatment. Rauscher testified that
he explained the situation, and that Balzer denied
reaching any agreement with Caffrey.8
It is well settled that an employer violates its
duty to bargain collectively when it institutes
changes in employment conditions without notice
to and bargaining with the union. NLRB v. Katz,
369 U.S. 736 (1962). Similarly, it is well established
that a Christmas bonus consistently paid over a
number of years is a term of employment, even
though it is not expressly provided for in the bar-
gaining agreement, and cannot be discontinued by
the employer before the union has been given
notice and an opportunity to bargain. Aeroca, Inc.,
253 NLRB 261, 264 (1980), enf. denied on other
grounds 650 F.2d 501 (4th Cir. 1981); Woonsocket
Spinning Co., 252 NLRB 1170 (1980). 9
The General Counsel established that the Re-
spondent proposed replacing its previous cash
bonus with a gift package if the employees agreed
to the substitution. The Union accepted this pro-
posal, polled the employees, and informed the Re-
spondent of their decision not to accept the
change. Thus, it is clear that the Union did not
consent to the proposed new bonus system. The
Respondent's subsequent action implementing the
change was unauthorized and, as the judge found,
was a violation of Section 8(a)(5) and (1) of the
Act. I o
he saw Balzer at a cocktail party where Balzer said, "By the way with
respect to the Christmas bonus issue: it's okay, go ahead and do it, but
make sure that the gift is nice." The judge, however, did not credit Caf-
frey's testimony.
8 During the course of the hearing, the parties recognized that, due to
his health, Balzer would not likely be able to attend the hearing and testi-
fy concerning the events in issue. Therefore, the judge admitted an affi-
davit which Balzer had earlier given to a Board agent investigating the
case. In light of Rauscher's credited testimony, we do not rely on
Balzer's affidavit, and thus find it unnecessary to consider the Respond-
ent's exception to its admission into evidence.
I Inasmuch as the Christmas bonus was based on an employee's length
of service, i.e., seniority, and had been given by the Respondent for over
40 years, Chairman Dotson and Member Hunter agree that the Christmas
cash bonus became part of the employees' terms and conditions of em-
ployment and thus a subject over which an employer must bargain with a
union.
'0 The Respondent excepts to the judge's exclusion of evidence con-
cerning negotiations with other unions about the change in the bonus
system. Essentially, the Respondent sought to establish that it had bar-
g .ned with 14 other unions at different locations over the change, and
that, where the change had not been agreed to, it had not been imple-
mented. While we recognize that the proffered evidence could have some
relevance to the material issues, we note that administrative law judges
are authorized to exclude such evidence "if its probative value is substan-
tially outweighed by . . . considerations of undue delay, waste of time,
or needless presentation of cumulative evidence." Fed.R.Evid. 403. As
Justice Holmes observed in Reeve v. Dennett, 145 Mass. 23, 11 N.E. 938,
943-944 (1887), such a rule is a necessary "concession to the shortness of
life." In this case, the evidence the Respondent sought to introduce had
little probative value regarding the bargaining between the Respondent
and this Charging Party, and would have opened up a number of collat-
In so finding, we reject the Respondent's conten-
tion that its action in implementing the change was
excused because the parties had reached impasse.
Impasse exists where the parties, after good-faith
bargaining, have exhausted the prospects of con-
cluding an agreement. Taft Broadcasting Co., 163
NLRB 475, 478 (1967), enfd. 395 F.2d 622 (D.C.
Cir. 1968). The credited testimony indicates that
the parties had in fact reached agreement not to
implement the new bonus system unless the em-
ployees consented to the change. This is the oppo-
site of impasse, and, accordingly, we find no merit
in the Respondent's proffered defense.
ORDER
The National Labor Relations Board orders that
the Respondent, Stroehmann Brothers Company,
Norristown and Williamsport, Pennsylvania, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Without notice to or bargaining with Bakery,
Confectionery and Tobacco Workers International
Union, AFL-CIO-CLC, Local No. 6, as the exclu-
sive representative of the employees in the appro-
priate units set forth in article II of the collective-
bargaining agreements between the Respondent
and the Union covering the employees at the Wil-
liamsport and Norristown, Pennsylvania, facilities,
discontinuing its cash Christmas bonus and substi-
tuting a food package.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the ap-
propriate units concerning the discontinuance of
the cash Christmas bonus.
(b) Reinstate for all employees in the appropriate
units the cash Christmas bonus discontinued by the
Respondent in December 1981.
(c) Make whole the employees in the appropriate
units for the Respondent's failure to pay the cash
Christmas bonus with interest computed in accord-
ance with Florida Steel Corp., 231 NLRB 651
(1977).11
eral issues, the exploration of which would have consumed a great deal
of time. Accordingly, we affirm the judge's ruling excluding this evi-
dence.
Contrary to the judge, Chairman Dotson would offset the value of the
food package against the cash bonus to be paid to the employees. To do
otherwise, in the Chairman's view, would bestow on the employees an
unwarranted windfall.
I See generally Isis Plumbing Co., 138 NLRB 716 (1962).
1361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amounts of backpay due under the terms of this
Order.
(e) Post at its Williamsport and Norristown,
Pennsylvania, facilities copies of the attached
notice marked "Appendix B." 12 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 4, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
12 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discontinue our cash Christmas
bonus and substitute a food package without notice
to or bargaining with Bakery, Confectionery and
Tobacco Workers International Union, AFL-CIO-
CLC, Local No. 6, as the exclusive representative
of the employees in the appropriate units set forth
in article It of the collective-bargaining agreements
between us and the Union covering employees at
the Williamsport and Norristown, Pennsylvania, fa-
cilities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union as
the exclusive representative of the employees in the
appropriate units concerning the discontinuance of
the cash Christmas bonus.
WE WILL reinstate the cash Christmas bonus
which we discontinued in December 1981 for all
employees in the appropriate units.
WE WILL make whole the employees in the ap-
propriate units for our failure to pay the cash
Christmas bonus, with interest.
STROEHMANN BROTHERS COMPANY
DECISION
PRELIMINARY STATEMENT-ISSUE
STANLEY N. OHLBAUM, Administrative Law Judge:
This proceeding' under the National Labor Relations
Act, as amended, 29 U.S.C. § 151, et seq. (the Act), was
litigated before me in Philadelphia, Pennsylvania, on No-
vember 29-30, 1982, with all parties participating
throughout by counsel, who were accorded full opportu-
nity to present evidence and contentions, as well as to
file proposed findings and conclusions and also briefs re-
ceived on January 24-25, 1983. Record, proposed find-
ings and conclusions, and briefs have been carefully con-
sidered.
The principal issue is whether the Respondent Em-
ployer, Stroehmann Brothers Company, violated Section
8(a)(5) and (1) of the Act through unilaterally changing
the wages of its employees by discontinuing payment to
them of an established, longstanding Christmas bonus
(substituting therefor a cheese and bologna package),
without bargaining with and agreement of the employ-
ees' duly designated exclusive bargaining representative
(the Charging Party, Bakery, Confectionary2 and Tobac-
co Workers International Union, AFL-CIO-CLC, Local
No. 6, herein).
On the entire record and my observations of the testi-
monial demeanor of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
1. JURISDICTION
At all material times the Respondent, a Pennsylvania
corporation with its principal office in Williamsport in
that State and engaged in the manufacture and distribu-
tion of bread products, has maintained facilities, here in-
' Complaint issued on June 30, by Board's Regional Director for
Region 4, growing out of charge filed on February 24, 1982, by the
above Charging Party Union.
2 Sic in complaint caption; "Confectionery" in charge.
1362
STROEHMANN BROTHERS CO.
volved, in Norristown as well as at 3375 Lycoming
Creek Road and Washington Boulevard in Williamsport,
likewise in Pennsylvania. During the representative year
immediately preceding issuance of the complaint, the Re-
spondent purchased and received at its said Norristown
and Williamsport facilities, directly in interstate com-
merce from places outside of Pennsylvania, goods and
materials valued in excess of S50,000.
I find that at all material times the Respondent has
been and is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7), and the Charg-
ing Party union a labor organization as defined in Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Factual Background
The Respondent is a large baking enterprise with at
least 15 different locations in Pennsylvania, New York,
and Maryland, including those in Norristown (bread and
rolls), and at Lycoming Creek Road (rolls) and Washing-
ton Boulevard (cake) in Williamsport, Pennsylvania, the
latter three each with at least some bargaining units of
employees represented by the Charging Party union
here. Other of the Respondent's employees are represent-
ed by other unions. The Respondent also employs non-
unionized employees at its facilities. The unionized bar-
gaining unit represented by the Charging Party in the
Respondent's Norristown plant consists of several hun-
dred employees, while those at Williamsport total around
200. The Respondent's Williamsport bread plant, with
about 100 employees, is ununionized. All in all, accord-
ing to the Respondent's senior vice president for law and
labor relations, Charles Caffrey, at the end of 1981 the
Respondent had about 1500 unionized and 1200 nonun-
ionized employees, with perhaps 9 or 10 out of its 15 fa-
cilities nonunionized.
It is undisputed that for over 40 years the Respondent
has maintained, without change, a Christmas cash bonus
system for all of its employees, unionized as well as non-
unionized, based on an employee's longevity in the Re-
spondent's service.
It is also undisputed that commencing for Christmas of
1981 this long-standing Christmas bonus system was dis-
continued for all union employees and supplanted by a 5-
pound package of cheese and bologna, while all non-
union employees received not only such a package but
also a cash bonus of either S30 or $75 (dependent on
whether they had worked for the Respondent for less or
more than 10 years).
It is the discontinuance of the cash bonus for the Re-
spondent's union employees represented by the Charging
Party Union, around which the controversy here swirls.
The Respondent insists this was done with the consent of
the Union, but the Union staunchly denies it. The cir-
cumstances surrounding this change in a 40-year-old im-
bedded practice will now be addressed.
At the outset, it is appropriate to point out that the
Respondent concedes that it was not at liberty to discon-
tinue or change the long-established cash bonus system
without bargaining with the Charging Party Union, with
whom it has collectively bargained labor contracts cov-
ering the unit employees here. But the Respondent insists
that this it did and that the Union agreed-orally, with
no confirmatory document of any kind.
The Respondent's senior vice president for law and
labor relations, Charles Caffrey, an attorney who has
been in its employ for 16 years, testified that shortly after
the Respondent was acquired in 1981 by a Canadian
company (George Weston Limited of Canada) which in-
stalled its own president, one Wygant, it was decided to
discontinue the longstanding Christmas bonus system for
the Respondent's unionized employees and to supplant it
with a package of cheese and bologna, while at the same
time and in addition to the cheese/bologna package to
give only to the nonunionized employees a cash bonus
larger than the previous bonus.3
Before carrying out the new policy, the Respondent
consulted with and was formally advised by its attor-
neys, in a well-considered memorandum of September
24, 1981 (R. Exh. 4), which in this respect accords with
the law, that it could not lawfully abrogate or alter its
long-established cash bonus system without bargaining
with its employees' bargaining representative. It is undis-
puted that at no time did the Respondent indicate to the
Union that it intended to continue, much less to increase,
the Christmas cash bonus for its nonunionized employees
at the same time it discontinued it for its unionized em-
ployees-Caffrey not only concedes this but continues to
insist that this was and is "none of the union's business,"
the Respondent's treatment of its nonunion employees
being a matter solely for the Respondent's concern.
Caffrey testified that, in order to effectuate the Re-
spondent's decision to discontinue its longstanding
Christmas cash bonus system (i.e., at any rate as to its
unionized employees), on October 5, 1981, he telephoned
Union President Joseph Balzer on that subject, convey-
ing to the latter the Respondent's desire in that regard to
substitute a "food package" for the previous cash for "all
employees" (emphasis added). Balzer indicated he would
have to "get to [my] people" for their reaction. On Octo-
ber 29 Caffrey again telephoned Balzer on this subject,
and was informed by Balzer that he had no answer for
him yet. But, according to Caffrey, when he by "chance
encounterled]" (Caffrey's testimony expression) Balzer
on November 7, 1981 at a Teamsters social cocktail
affair, Balzer made the unsolicited and unwitnessed
remark to him that "By the way with respect to the
Christmas Bonus issue: it's okay, go ahead and do it, but
make sure that the gift is nice." Caffrey concedes that
Balzer-then seemingly in an advanced or terminal stage
of mouth and throat cancer and having undergone re-
peated surgery therefor, as will be shown below-"may
have been drinking."
Caffrey concedes that he at no time confirmed this al-
leged "agreement" on Balzer's part, by memorandum or
letter or otherwise, nor even made a note of it in any of
his or the Respondent's files. Caffrey also acknowledges
S Although at the hearing Caffrey claimed credit for these ideas, Union
President Balzer has sworn (G.C. Exh. 7. p. 4) that Caffrey blamed
Wygant, the new Canadian firm president. It is unimportant here who
generated the idea or ideas, it being clear that they in fact constituted the
Respondent's policy carried out by it.
1363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that at no time did he so much as mention the Respond-
ent's intention, as part of its plan to dismantle the exist-
ing cash Christmas bonus system, not only to preserve
but also to increase it only for its nonunionized employ-
ees.
In early December 1981, the Respondent distributed to
its unionized unit employees a cheese and bologna pack-
age instead of their longstanding Christmas cash bonus,
with a letter, dated December 1, which was also given to
all nonunionized employees along with the same cheese
and bologna package. The letter (GC Exh. 2) states (em-
phasis added):
To All Stroehmann Employees,
I would like to take this opportunity to extend
my personal best wishes and those of the officers
and staff to you and your family.
May you enjoy a happy and safe Holiday Season
and approach the New Year with hope and confi-
dence in yourself and the continued success of your
Company.
The Christmas gift is presented in the holiday
spirit, in recognition of your contributions, as part
of Stroehmann Brothers Company.
We look forward to the upcoming year with op-
timism and remain confident of your continued sup-
port.
/s/ J. P. Wygant
J.P. Wygant
President
At the same time or a few days later the Respondent
handed out to its nonunionized emplbyees only, in addi-
tion to the cheese and bologna package, a Christmas cash
bonus larger than any previously distributed, accompa-
nied by the following letter dated December 11, 1981
(G.C. Exh. 3; emphasis added):
Dear Stroehmann Employee:
This year, Stroehmann Brothers Company has
changed its practice of giving each employee a
Christmas check in an amount reflecting each year
of additional service. Beginning this Christmas, each
full time employee with ten or more years of con-
tinuous service, as of Christmas Day, will receive a
Christmas check in the amount of $75 and those
with fewer than ten years of continuous service, as
of Christmas Day, will receive $30.
We hope that the gift you receive will add to the
joy of your Christmas Season.
/s/ J. P. Wygant
J.P. Wygant
President
It is to be noted that notwithstanding the statement in
the second sentence of this letter that "each" full-time
employee "will receive" the specified larger Christmas
cash bonus, that bonus was given to Respondent's non-
union employees only.4
Joseph Rauscher, vice president of Charging Party
Union, testified that for the past 2 or more years he has
carried the day-to-day burden of administering the
Union's affairs because of the intermittent disability of its
president, Joseph Balzer, who has for 3 years been suf-
fering from terminal cancer of the mouth and throat me-
tastasizing throughout his head, involving repeated sur-
gery. Thus, Balzer had been to the union office only
once in the 4-month period before this trial; and at the
time of (and for a week preceding) this trial he was again
hospitalized and comatose. The Respondent concedes it
was and is familiar with Balzer's condition.
Rauscher swore unequivocally that there had been no
negotiated or agreed change in the Respondent's long es-
tablished Christmas cash bonus system, with him or to
his knowledge with Balzer or any other union represent-
ative. According to Rauscher, whose testimony, al-
though disputed by Caffrey, I credit, in the fall of 1981
Caffrey broached to him the idea of a change in the es-
tablished Christmas bonus system from cash to a food
package, and Rauscher's response was that he would poll
his constituents, which he did through his business agent
(Donald Tholan) and committeeman (Carl Minott)-who
corroborated his testimony in this respect-and who sub-
sequently reported to him that the employees were un-
willing to do so, which Rauscher relayed to Caffrey,
who remarked only that he was "sorry to hear that, but
if that's the way it is' that's the way it is." According to
Rauscher, he heard nothing further about the matter
until he learned in early December (1981) from his stew-
ard that the substitution of cheese and bologna for cash
had been made by the Respondent at all locations for its
unit employees and that "the people are screaming up
here." When, thereupon, Rauscher promptly telephoned
Caffrey about it, he was informed by Caffrey that
Balzer-then again hospitalized-had agreed to it.
Rauscher, who was "in charge" under the circumstances
detailed involving Balzer's continuous absences because
of his dire illness, pointed out to Caffrey that Rauscher
was totally unaware of any such alleged "agreement,"
which was, indeed denied by Balzer. Rauscher thereupon
referred the matter to the Union's attorneys, resulting in
the charge and complaint here. Rauscher's testimony im-
pressed me as straightforward and I credit it.
In the described posture of the record, with Balzer
hospitalized for terminal cancer of the mouth and throat,
4 The Respondent's Christmas cash bonuses in years before 1981 had
been accompanied by the following note (R. Exh. I) to all (union and
nonunion) employees:
We take pleasure in giving you this Christmas remembrance. This
has been made possible through the co-operation and effort of all
employees of the company this year.
Whether or not similar gifts can be made in the future will depend
upon the operating results of the company at that time.
In connection with the last paragraph, it is to be noted that (1) the issue
in the instant case is not Respondent's right to change its bonus system
but only whether the Respondent was required to bargain about it or re-
ceive its unit employees' bargaining representative's acquiescence before
doing so; (2) the Respondent concedes it could not lawfully discontinue
or change its bonus system unilaterally; and (3) no claim of bargaining
impasse or of economic necessity is advanced or involved here.
1364
STROEHMANN BROTHERS CO.
comatose, and for that reason unable to testify at this
trial, I received in evidence, at the behest of the General
Counsel and the Charging Party, the pretrial affidavit of
Joseph Balzer (G.C. Exh. 7), which had been sworn to
by him on April 5, 1982, some 8 months before this trial,
and further identified here as his by the Charging Party's
attorney, who testified he was present when the affidavit
was given and that the words were those of Balzer. My
receipt in evidence of this affidavit, in the absence of the
affiant under the circumstances described, was preceded
by thorough argument on the record followed by my de-
cision with a detailed rationale, also on the record and
which need not here be rehashed. The Respondent's
counsel, who submitted a memorandum (R. Exh. 7-
Ident), in opposition to the receipt of Balzer's affidavit,
conceded that the memorandum, prepared in advance of
this trial, was prepared by him in anticipation that the af-
fidavit would be offered, he having been placed on
notice to that effect by the General Counsel prior to the
trial.6 While receiving, properly as I continue to be-
lieve,8 the affidavit under the special, extraordinary, and
factually undisputed circumstances described-the Re-
spondent raises no issue concerning Balzer's condition-I
nevertheless did so with specific provision, as my order
on the record will disclose, affording the Respondent ex-
press opportunity to test the affidavit by taking the depo-
sition or testimony of Balzer, at bedside if necessary.
Notwithstanding this express safeguard provision, since I
received no indication whatsoever from the Respondent,
as required by my order, of any intention or desire on its
part to proceed with such arrangement, on December 20,
1982, I closed the record and prescribed a time for sub-
mission of proposed findings and conclusions and of
briefs. (A copy of my order of December 20, 1982, is
hereto attached as "Appendix A.")
Balzer's affidavit states that when Caffrey approached
him about the proposed Christmas bonus system change,
Caffrey assured him that under the Respondent's plan
"each [employee] would receive the same" (G.C. Exh. 7,
p. 2); that "I [Balzer] was surprised that he had come to
me about Norristown instead of going to Rauscher" (id);
that when he "ran into Caffrey on about November 7,
1981 at a Teamsters affair I was upstairs having a cock-
tail with the guests including Caffrey. Caffrey asked me
to step out in the hall. He asked me whether I had an
answer'about the Christmas bonus. I said No, as far as I
am concerned I don't give a shit one way or another but
I still don't have any word from my agents. He said he
wanted to get it cleared up since the time was getting
close. The following week at the officers meeting I men-
tioned it to Raucher and he said they had a meeting at
Norristown coming up and would have the people vote.
a Among other reasons advanced by the Respondent in objection to
receiving Balzer's affidavit is that "no documentary evidence substanti-
ates" (R. Exh. 7-ldent., p. 4) it. Although this is not the test, the same is
true of Caffrey's testimony.
" National Labor Relations Act, Sec. 10(b); Fed.R.Evid. 803(24),
804(bX5), and 804(aX4) and (5); Eastern Market Beef Processing Corp., 259
NLRB 102, 104-105 (1981), and cases cited; Justak Bros. & Co., 253
NLRB 1054, 1080-81 (1981), enfd. 664 F.2d 1074, 1081 (7th Cir. 1981);
Central Freight Lines, Inc., 250 NLRB 435 (1980), modified 653 F.2d 1023
(5th Cir. 1981); Goodwater Nursing Home, 222 NLRB 149 fn. 2 (1976);
Granite Hosiery Mills, 124 NLRB 1426, 1429-30 fn. 2 (1959).
Shortly thereafter I went into the hospital and don't
know when Raucher called him. Sometime in January
1982 before filing the Charge I called Caffrey. I wanted
to know what was going on, if he was trying to destroy
me. I said he told me the bonus would be the same for
all but the non-union people got more. He said it wasn't
him that did it, it was Pete Weygant the President who
did it. I do not know why Caffrey approached me with
this issue since he should have gone to the agent Joe
Rauscher first. Rauscher had the authority to make the
decision without consulting with me first. I never told
Caffrey that Rauscher was not competent to make deci-
sions. When I was in the hospital Rauscher was acting
President" (id., pp. 2-4; subscribed and sworn to by
Balzer on April 5, 1982).
B. Discussion and Resolution
Since the Respondent in December 1981 concededly
discontinued its long-established Christmas cash bonus
system for its unionized employees here (only) and since
the Respondent further concedes it could not lawfully do
so without bargaining with the Union, the Respondent
has accordingly necessarily assumed the burden of estab-
lishing, by the required fair preponderance of substantial
credible evidence upon the record as a whole, that it was
freed from this obligation or satisfied it.7
It is hornbook law that a waiver, surrender, or aban-
donment of a known right must be clear, unambiguous,
and unmistakable, and that it will not be lightly implied
or inferred.8
The Respondent rests its defense on its contention that
the Union surrendered the employees' important and val-
uable rights here-not just for 1981 but for all future
time-through an unwitnessed remark made by Union
President Balzer to attorney Caffrey at a cocktail party
of another union on November 7, 1981. Since Caffrey's
testimony to that effect is wholly uncorroborated and
unsupported, it must stand on its own feet or the Re-
spondent's defense must fail.
In the assessment of Caffrey's testimony, it is appropri-
ate at the outset to observe that he is an interested and
directly concerned witness. It is further to be noted that
Caffrey, an attorney of many years' standing and long
experienced in labor law matters including even as an
employee of the Board, acknowledges that in no way did
he at any time commit to writing, confirm by letter or
otherwise, or even make any meaningful memorandum
for his or his Company's files as to the alleged "agree-
' The Respondent's burden may be likened to that of a party to a con-
tract who asserts that he is excused from performance because the other
party without consideration agreed to accept less than the required per-
formance; or to that of a borrower who contends he is freed from further
obligation because the lender agreed orally to receive leas than full pay-
ment as full payment.
8 Timken Roller Bearing Co v. NLRB, 325 F.2d 746, 750-754 (6th Cir.
1963), cert. denied 376 U.S. 971 (1964); NLRB v. Item Co., 220 F.2d 956,
958-959 (5th Cir. 1955), cert. denied 350 U.S. 836 (1955), rehearing
denied 350 U.S. 905 (1955); NLRB v. J. H. Allison & Co., 165 F.2d 766,
768 (6th Cir. 1948), cert. denied 335 U.S. 814 (1948); Sun Oil Co of Penn-
sylvania, 232 NLRB 7 (1971); C a C Plywood Corp., 148 NLRB 414, 416-
417 (1964), enf. denied 351 F.2d 224 (9th Cir. 1965), revd. 385 U.S. 421
(1967); Tucker Steel Corp., 134 NLRB 323, 332 (1961), and cases cited;
Tide Water Associated Oil Co., 85 NLRB 1096, 1098 (1949).
1365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment" which he claims Balzer concluded with him on
behalf of some 270 employees eliminating a prized and
valuable cash bonus practice which had been in effect
for over 40 years. This appears to have been in a marked
contrast to Caffrey's ascribed practice, since the summer
of 1971, of committing some dealings with the Union-in
addition, of course, to collective agreements-to writing.
The particular matter here involved an established prac-
tice firmly imbedded for upwards of 40 years affecting
hundreds of employees and potentially many thousands
of dollars, to say nothing of the tens of thousands of
future dollars involved for succeeding years-hardly the
kind of matter to be laid to rest incautiously by an expe-
rienced attorney on the basis of an unwitnessed cavalier
remark at a cocktail party.
The Charging Party's vice president and operating of-
ficial, Rauscher, substantially at its helm in view of its
president's grievous terminal illness, whom I observed
closely as he testified, impressed me as a stolid, unimagi-
native, candid, and forthright witness whose testimony
rang true and is worthy of belief. After observing him
with care as he testified, I cannot accept the suggestion
that his testimony, which I have described above, is a
sheer fabrication or a figment of his imagination, any
more than I feel justified in assuming that Balzer's sworn
statements-also contrary to Caffrey's testimony-are
likewise sheer fabrication.
In view of these considerations, even if Caffrey's testi-
mony concerning his crucial alleged conversation of No-
vember 7, 1981, with Balzer at the Teamsters cocktail
party were to be viewed arguendo as uncontradicted,
and even without resort to the contents of Balzer's affi-
davit to the contrary, I would still not credit Caffrey's
testimony concerning that alleged conversation, within
the context that Balzer's inability to testify herein in
person is fully and uncontrovertedly explained. I regard
this position as fortified by the Respondent's unexplained
failure to avail itself of the protective provisions to my
receipt of Balzer's affidavit, to take his testimony or dep-
osition at bedside if necessary.
Moreover, it may be considered that even if, again ar-
guendo, an "agreement" was struck with the Union as
the Respondent contends, striking down the longstanding
Christmas cash bonus system for cheese and bologna,
since the Respondent did not honor that "agreement" the
Union was in any event freed from its "obligation." Caf-
frey, the Respondent's spokesman in these matters, testi-
fied that, in his preliminary talk with ailing Union Presi-
dent Balzer, Caffrey had expressly represented to and as-
sured Balzer that the substitution of the Christmas food
package for the Christmas cash bonus was intended by
the Respondent for all of its employees. 9 Concededly in
no way did Caffrey indicate-indeed, he concealed-that
while the Respondent intended to give the same Christ-
mas food package to all (nonunion as well as union) em-
ployees, it would at the same time not merely continue but
increase the Christmas cash bonus only for its unonunion
employees. There is no reason to suppose that Balzer, any
9 I.e., nonunion as well as union, since the Respondent had for over 40
years maintained its Christmas cash bonus system uniformly for both
without distinction.
more than any self-respecting union official, would agree
to any such absurd, self-defeating, and disreputable (from
his point of view) arrangement; and there is no evidence
or claim that Balzer ever did. Since, however, the
scheme as carried out by the Respondent-unlike that as
represented to Balzer-was precisely that, namely,
giving a Christmas food package to all employees but
discontinuing the Christmas cash bonus only for union-
ized employees while at the same time increasing it for
the nonunionized employees, no such offer had ever been
made by the Respondent to the Union and therefore
there could be no meeting of the minds or agreement to
that effect. Caffrey's explanation for this, at the trial, that
it was "none of the union's business," in addition to
smacking of flippancy, is wide of the point of whether a
binding arrangement eventuated from a contractual
meeting of minds.
Under all of the circumstances, it is accordingly found
and determined that the Respondent has failed to sustain
its burden of proof of establishing, through a preponder-
ance of substantial credible evidence upon the record as
a whole, that the Charging Party Union acceded to a
surrender or waiver of a change in the unit employees'
long established Christmas cash bonus entitlement, or
that Respondent was freed of its obligation in that
regard. It is therefore found and determined that,
through the Respondent's unilateral change thereof as al-
leged in the complaint, the Respondent violated and con-
tinues to violate Section 8(a)(5) and (1) of the Act.
On the foregoing findings and the entire record, I state
the following
CONCLUSIONS OF LAW
A. Jurisdiction is properly asserted in this proceeding.
B. Through discontinuing, in and since December
1981, its established Christmas cash bonus system for its
employees represented by the Charging Party Union
herein, without bargaining collectively with or obtaining
the acquiescence of said bargaining representative, under
the circumstances hereinabove described, the Respondent
unilaterally changed the terms and conditions of employ-
ment of said employees in violation of Section 8(a)(5) of
the National Labor Relations Act.
C. The Respondent thereby also interfered with, re-
strained, and coerced employees, and continues so to do,
in the exercise of their rights under Section 7 of said
Act, thereby violating Section 8(a)(1) of the Act.
D. The foregoing unfair labor practices, in violation of
the Act, and each of them have affected, are affecting,
and unless permanently restrained and enjoined will con-
tinue to affect, commerce within the meaning of Section
2(6) and (7) of the Act.'I
REMEDY
The Respondent should be required to cease and desist
from continuing the violations found, and from engaging
in like and related violations of the Act. The Respondent
'o The parties' proposed findings and conclusions are, to the extent
consistent with the findings and conclusions made herein, allowed; and,
to the extent inconsistent, disallowed.
1366
STROEHMANN BROTHERS CO.
should also be required to reinstate and reinstitute its
long-established Christmas cash bonus system, as of prior
to December 1981, and to make whole all of its unit em-
ployees represented by the Charging Party Union here,
for all bonus moneys unpaid since that date, together
with interest at the currently required rates under pre-
vailing Board policy." Finally, the usual informational
notice to employees should be required to be posted.
I' Although I am aware that the Respondent made or attempted to
make some distribution among the unit employees of its cheese and bolo-
gna package, there is no evidence as to who did or did not take it, while
there is ample evidence that it was neither desired nor regarded as a sub-
stitute for their longestablished Christmas cash bonus. Under these cir-
cumstances, I do not believe that it would be fair, equitable, or practica-
ble to provide for an offset of the "value" of this package against the
cash bonus, since that would in effect compel the unwilling employees to
accept it even though they did not want it. Furthermore, since it was the
Respondent who created this problem through its unlawful action in uni-
laterally abrogating the longstanding Christmas cash bonus, it is not in-
equitable to allow the balance of any resulting damage to fall upon the
party (i.e., the Respondent) who caused it, it being on general equitable
principles for the wrongdoer to extricate itself from the consequences of
its own wrongdoing. Cf., e.g., Judge Learned Hand, in NLRB v. Reming-
ton Rand, 94 F.2d 862 at 872 (2d Cir. 1938), cert. denied 304 U.S. 576
(1938). I shall accordingly treat the cheese and bologna, having in mind
also that it was distributed to nonunion employees as well together with
an increased bonus, as an unsolicited gift or gratuity from the Respondent
to all of its employees in what is or was sometimes regarded as the true
Christmas spirit. Cf. Dickens, A Christmas Carol.
[Recommended Order omitted from publication.]
APPENDIX A
ORDER CLOSING HEARING AND RECORD,
&c.
Upon the basis of my order during trial on November
30, 1982 affording the Respondent opportunity to take
the testimony or deposition of Joseph Balzer, as and
under the circumstances detailed in my said order, and
no action under or response to that order having been
taken by or received from the Respondent notwithstand-
ing expiration of the time allotted therefor, and upon all
papers and proceedings heretofore had herein including
the transcript of the hearing herein, it is hereby
ORDERED, that the record and hearing in this pro-
ceeding be and they are hereby closed, and that the par-
ties shall have to and including January 24, 1983 for sub-
mission of proposed findings and conclusions and of
briefs.
Dated at Washington, D.C.
December 20, 1982
/s/ Ohlbaum
Stanley N. Ohlbaum
Administrative Law Judge
1367