Waxie Sanitary Supply

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 303 (N.L.R.B. 2001)

WAXIE SANITARY SUPPLY 303
Waxie Sanitary Supply and Building Material, Con­
struction, Industrial, Professional and Technical
Teamsters, Local No. 36, International Brother-
hood of Teamsters, AFL–CIO. Cases 21–CA–
32812, 21–CA–32893, and 21–CA–33185
December 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On February 9, 2000, Administrative Law Judge Bur-
ton Litvack issued the attached decision. The Ge neral
Counsel and the Respondent filed exceptions, briefs in
support of exceptions, answering briefs, and reply briefs.
The Respondent filed objections to the General Coun­
sel’s exceptions and the Charging Party filed a brief in
opposition to the Respondent’s exceptions.
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,1 and conclusions2
only to the extent consistent with this Decision and Or-
der.3
1. The judge found that the Respondent did not violate
Section 8(a)(5) and (1) of the Act by delaying execution
of an agreed-upon collective-bargaining agreement for
one day from August 13, until August 14, 1998,4 for re-
view by the Respondent’s attorney and signature by the
Respondent’s president. The General Counsel excepts to
this finding. We reject the General Counsel’s conten­
tions and affirm the judge’s finding.
The judge also found that the Respondent violated
Section 8(a)(5) and (1) by delaying execution of the
agreement an additional 33 days from August 14 until
September 16. The Respondent excepts to this finding,
contending, inter alia, that its delay in executing the
1 The General Counsel has excepted to some of the judge’s credibil­
ity findings. The Board’s established policy is not to overrule an ad­
ministrative law judge’s credibility resolutions unless the clear prepon­
derance of all the relevant evidence convinces us that they 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.
2 No exceptions were filed with regard to the judge’s findings and
conclusion that the Respondent violated Sec. 8(a)(5) and (1) by unilat­
erally discontinuing the Respondent’s driver safety bonus program. No
exceptions were filed to the judge’s findings and dismissal of complaint
allegations that the Respondent violated Sec. 8(a)(5) and (1) by unilat­
erally discontinuing a practice of allowing employees to use the Re­
spondent’s vehicles to train for a commercial driver’s license or by
refusing to execute a collective-bargaining agreement from July 21,
1998, through August 13, 1998.
3 We will modify the judge’s recommended Order in accordance
with our decisions in Ferguson Electric Co., 335 NLRB 142 (2001),
and Excel Corp., 325 NLRB 17 (1997).
4 All dates hereafter are in 1998, unless otherwise specified.
agreement was excused by (1) a good-faith doubt regard­
ing the Union’s continued majority status and (2) a need
to seek legal advice regarding the impact of the August
14 decertification petition upon its bargaining obligation.
We reject the Respondent’s contentions.
The Respondent’s good-faith doubt contention is de­
fective, both procedurally and substantively. The Re­
spondent failed to raise or litigate the contention before
the judge. Accordingly, evidentiary issues relevant to the
contention have not been fully or fairly explored, and the
Respondent may not press the contention before the
Board. International Paper Co., 319 NLRB 1253, 1276
(1995), enf. denied 115 F.3d 1045 (D.C. Cir. 1997). In
any event, the record shows that the parties reached full
agreement on the terms of the contract at the conclusion
of the August 13 negotiating session, before the August
14 filing of the decertification petition. The decertifica­
tion petition by itself did not provide a basis for a good-
faith doubt of the Union’s continued majority status and
did not privilege nonexecution of the contract. See Fly­
ing Dutchman Park, Inc., 329 NLRB 414, 417 (1999).
The Respondent also contends that its delay in execut­
ing the agreement was excused by a need to seek legal
advice regarding the impact of the August 14 decertifica­
tion petition upon its bargaining obligations. We reject
this contention. The Respondent did not support its con­
tention with sufficient evidence—that is, evidence show­
ing specifically when it sought legal advice, who sought
the advice, what advice was sought, and when the re-
quested advice was received. Instead, the Respondent’s
evidence shows only that unidentified Respondent offi­
cials discussed the general situation with legal counsel at
unspecified times between August 14 and September 16.
The Respondent’s reliance on Massey-Ferguson, Inc.,
184 NLRB 640, 644 fn. 6 (1970), is misplaced. There,
the employer immediately notified the union that it was
suspending bargaining to obtain legal advice regarding
the impact of a decertification petition. Furthermore, the
judge in Massey-Ferguson found that notwithstanding
the employer’s request to suspend bargaining while it
sought legal advice, the employer there violated the Act
when it refused the union’s request 8 days later to resume
bargaining. Here, by contrast, there is no evidence that
the Respondent cited its purported need to obtain legal
advice when it delayed signing the admittedly acceptable
contract on August 14, and the Respondent continued to
refuse union requests made 7, 19, and 20 days later to
sign the contract.
2. The judge found that the Respondent’s holiday bo­
nus was not a term of employment and concluded that
therefore the Respondent did not violate its bargaining
obligation by its admitted unilateral discontinuance of
337 NLRB No. 43
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the bonus. The General Counsel excepts to this finding
and conclusion. For the reasons stated below, we find
merit in the exception and conclude that the Respondent
violated Section 8(a)(5) and (1) by discontinuing the
holiday bonus without first providing the Union notice
and an opportunity to engage in meaningful bargaining
regarding the decision.
Since at least 1995, the Respondent maintained a holi­
day bonus program entitled “All Sell All Grow.” The
bonus program was described in detail in a handout dis­
tributed to new employees. According to the handout,
bonuses would be paid if gross profits increased more
than 7.5 percent compared to the preceding year. An
employee’s projected bonus amount would be a specified
percentage of the employee’s annual salary. The speci­
fied percentage varied according to the percent increase
in the Respondent’s gross profits. The employee would
receive at least 70 percent of the projected bonus amount.
Finally, the employee would receive the remaining 30
percent of the projected bonus amount at the discretion
of the employee’s manager. The handout also contained
a table listing percent increases in gross profits (7.5 to 25
percent) and, for each listed percent increase, the corre­
sponding specified percentage to be used in calculating
the bonus. The Respondent posted monthly gross profit
information in the employee lunchroom so that employ­
ees could monitor the size of the anticipated bonus
throughout the year. The Respondent paid the bonus at
the annual Christmas party. Employee witnesses re­
ceived bonuses ranging from $25 to $571 between 1995
and 1997.
An employer must bargain with the union before
changing existing terms and conditions of employment.
NLRB v. Katz, 369 U.S. 736, 742 (1962). A holiday bo­
nus is a mandatory bargaining subject if the employer’s
conduct raises the employees’ reasonable expectation
that the bonus will be paid. Sykel Enterprises, 324
NLRB 1123, 1124–1125 (1997); Laredo Coca-Cola Bot­
tling Co., 241 NLRB 167, 173–174 (1979), enfd. 613
F.2d 1338 (5th Cir. 1980), cert. denied 449 U.S. 889
(1980). Here, the Respondent’s conduct caused employ­
ees to reasonably expect payment of the bonus. The bo­
nus had been paid for at least 3 consecutive years, was
determined pursuant to a specific formula, and was de-
scribed in detail in a handout distributed to new employ­
ees. Furthermore, the Respondent posted monthly profit
figures in the employee lunchroom so that employees
could chart the prospective size of the holiday bonus
during the year.
The judge’s critical finding—that the bonus was not a
term of employment—was based in part on the fact that
payment of the bonus was dependent upon the Respon­
dent attaining a specified minimum percentage increase
in gross profits. However, an employer’s conduct can
create a reasonable employee expectation that a bonus
will be paid even where the bonus is dependent in whole
or in part upon the employer’s profit. Sykel Enterprises,
supra at 1124 (bonus based in part on “how the Company
operated that year”); Laredo Coca-Cola Bottling, Inc.,
supra at 173 (bonuses paid “because sales were high”);
Phelps Dodge Mining Co., 308 NLRB 985, 987, 1000
(1992), enf. denied 22 F.3d 1493 (10th Cir. 1994) (bo­
nuses “linked to the current overall profitability”). See
also Gas Machinery Co., 221 NLRB 862, 865 (1975)
(employer’s financial condition and ability to pay not
factors in determining whether bonus is bargainable sub­
ject).
The judge’s critical finding—that the bonus was not a
term of employment—was also based in part upon his
factual finding that the bonus was not based on employee
performance. However, this factual finding is not sup-
ported by the record evidence. To the contrary, the Re­
spondent’s employee handout describing the bonus as
well as Respondent Vice President Kay’s testimony
show that an employee’s department manager could
withhold up to 30 percent of the employee’s bonus based
on the employee’s performance. In any event, a bonus
can be a term of employment regardless of whether it is
based on employee performance. See, e.g., Laredo
Coca-Cola-Bottling Co., supra at 174 (bonus based on
employee earnings); Phelps Dodge Mining Co., supra at
1000 (bonus based on employee pay rates or hours
worked); Woonsocket Spinning Co., 252 NLRB 1170,
1172 (1980) (bonus based on employee hours worked
and years with employer).
In its answering brief before the Board, the Respon­
dent renews its contention that the Union waived its right
to bargain regarding the holiday bonus.5 However, the
subject of the holiday bonus was not discussed during the
negotiations leading to the collective-bargaining agree­
ment. Nor was the subject addressed in the agreement
itself. Accordingly, we reject the Respondent’s waiver
contention as not supported by the evidence.
In support of its waiver contention, the Respondent re-
lies upon the management-rights clause in the agree-
ment.6 However, the clause does not refer, either directly
5 Having found that the holiday bonus was not a term of employ­
ment, the judge did not reach the Respondent’s waiver contention re­
garding the holiday bonus.
6 The clause provides: “It is expressly agreed that all rights which
are ordinarily vested in and exercised by employers, except those which
are clearly and expressly relinquished herein by the Company, shall
continue to vest exclusively and be exercised exclusively by the Com­
pany.”
WAXIE SANITARY SUPPLY 305
or indirectly, to the holiday bonus and there is no bar-
gaining history evidence that the parties intended the
management rights clause to waive the Union’s right to
bargain regarding the holiday bonus.
For these reasons, we find that the Respondent failed
to demonstrate a clear and unmistakable waiver of the
Union’s right to bargain regarding a term of employ-
ment.7 We find that the Respondent’s unilateral discon­
tinuance of the holiday bonus violated its statutory bar-
gaining obligation. Hi-Tech Cable Corp., 309 NLRB 3,
4 (1992), enfd. per curiam 25 F.3d 1044 (5th Cir. 1994);
Johnson-Bateman Co., 295 NLRB 180, 184–185 (1989).
ORDER
The National Labor Relations Board orders that the
Respondent, Waxie Sanitary Supply, San Diego, Califor­
nia, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Delaying the execution of a memorialized version
of a collective-bargaining agreement with the Union be-
cause of the pendency of a decertification petition before
the Board.
(b) Discontinuing the driver safety bonus program, a
mandatory subject of bargaining, for its bargaining unit
drivers at its San Diego, California facility without first
providing notice to the Union and affording it an oppor­
tunity to engage in meaningful bargaining over the mat­
ter.
(c) Discontinuing the holiday bonus program, a man­
datory subject of bargaining, for its bargaining unit em­
ployees at its San Diego, California facility without first
providing notice to the Union and affording it an oppor­
tunity to engage in meaningful bargaining over the mat­
ter.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Reinstate its driver safety bonus program for its
bargaining unit drivers at its San Diego, California facil­
ity and maintain it in effect until any modification is ne­
gotiated with the Union or until an impasse in bargaining
is reached.
7 In finding that the Respondent did not prove waiver of the Union’s
right to bargain regarding the holiday bonus, Chairman Hurtgen would
apply the “contract coverage” analysis set forth by the D.C. Circuit in
NLRB v. Postal Service, 8 F.3d 832 (1993), to determine the legality of
the Respondent’s actions, but would reach the same result under a
“clear-and-unmistakable-waiver” analysis. See his separate opinions in
Good Samaritan Hospital, 335 NLRB 901, 905 (2001), and Dorsey
Trailers, Inc., 327 NLRB 835, 836–837 (1999).
(b) Reinstate its holiday bonus program for its bargain­
ing unit employees at its San Diego, California facility
and maintain it in effect until any modification is negoti­
ated with the Union or until an impasse in bargaining is
reached.
(c) Make whole its bargaining unit drivers at its San
Diego, California facility for any loss of earnings, with
interest calculated in the manner set forth in the Remedy
section of the judge’s decision, because of its unlawful
discontinuance of the driver safety bonus program.
(d) Make whole its bargaining unit employees at its
San Diego, California facility for any loss of earnings,
with interest calculated in the manner set forth in New
Horizons for the Retarded, Inc., 283 NLRB 1173 (1987),
because of its unlawful discontinuance of the holiday
bonus program.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in San Diego, California, copies of the at­
tached notice marked “Appendix.”8 Copies of the notice,
on forms provided by the Regional Director of Region
21, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme­
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re­
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since August 14, 1998.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official, on a form provided by the Region,
8 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 Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
attesting to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint be dis­
missed insofar as it alleges violations of the Act not spe­
cifically found.
APPENDIX
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 vio­
lated 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 representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT delay the execution of a collective-
bargaining agreement with Building Material, Construc­
tion, Industrial, Professional and Technical Teamsters,
Local No. 36, International Brotherhood of Teamsters,
AFL–CIO because of the pendency of a decertification
petition before the Board.
WE WILL NOT discontinue our driver safety bonus pro-
gram for our bargaining unit drivers at our San Diego,
California facility without first providing notice to the
Union and affording it an opportunity to engage in mean­
ingful bargaining over the matter.
WE WILL NOT discontinue our holiday bonus program
for our bargaining unit employees at our San Diego,
California facility without first providing notice to the
Union and affording it an opportunity to engage in mean­
ingful bargaining over the matter.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
WE WILL reinstate our driver safety bonus program for
bargaining unit drivers at our San Diego, California facil­
ity and maintain it in effect until any modification is ne­
gotiated with the Union or until an impasse in bargaining
is reached.
WE WILL reinstate our holiday bonus program for bar-
gaining unit employees at our San Diego, California fa­
cility and maintain it in effect until any modification is
negotiated with the Union or until an impasse in bargain­
ing is reached.
WE WILL make whole our bargaining unit drivers at our
San Diego, California facility for any loss of earnings,
with interest, because of our unlawful discontinuance of
our driver safety bonus program.
WE WILL make whole our bargaining unit employees at
our San Diego, California facility for any loss of earn­
ings, with interest, because of our unlawful discontinu­
ance of our holiday bonus program.
WAXIE SANITARY SUPPLY
David Mori, Esq., for the General Counsel.

Robert W. Bell, Jr. Esq., (Gray, Cary, Ware, & Friedenrich

LLP), of San Diego, California, for the Respondent.
Richard D. Prochazka, Esq., (Richard D. Prochazka & Associ­
ates), of San Diego, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The original
and amended unfair labor practice charges in Case 21–CA–
32812 were filed by Building Material, Construction, Indus­
trial, Professional and Technical Teamsters, Local International
Brotherhood of Teamsters, AFL–CIO (the Union), on June 17
and December 29, 1998; the unfair labor practice charge in
Case 21–CA–32893 was filed by the Union on August 6, 1998;
and the unfair labor practice charge in Case 21–CA–33185 was
filed by the Union on February 17, 1999. After an investigation
of said unfair labor practice charges, on May 27, 1999, the
Regional Director of Region 21 of the National Labor Relations
Board (the Board), issued an amended consolidated complaint,
alleging that Waxie Sanitary Supply (Respondent), engaged in
acts and conduct, violative of Section 8(a)(1) and (5) of the
National Labor Relations Act.1 Respondent timely filed an
answer, denying the commission of the alleged unfair labor
practices. Pursuant to a notice of hearing, the above-captioned
matters were set for, and came to, trial before the above-named
administrative law judge in San Diego, California, on August
23 and 24, 1999. During the trial, all parties were afforded the
opportunity to examine and to cross-examine witnesses, to offer
into the record all relevant documentary evidence, to orally
argue their legal positions, and to file post-hearing briefs.
Counsel for each party has filed a post-hearing brief, and said
documents have been carefully considered by the undersigned.
Accordingly, based upon the entire record, including the post-
hearing briefs and my observations of the testimonial demeanor
of each of the witnesses, I issue the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent, a State of Arizona
corporation with an office and place of business located in San
Diego, California, has been engaged in business as a distributor
1 At the hearing, pursuant to a non-Board settlement, counsel for the
General Counsel moved, and was granted permission, to withdraw
those portions of the amended consolidated complaint, alleging a viola­
tion of Sec. 8(a)(1) and (3) of the Act.
WAXIE SANITARY SUPPLY 307
of janitorial supplies. During the 12-month period ending Feb­
ruary 19, 1999, which period is representative, in the normal
course and conduct of its above-described business operations,
Respondent purchased and received at its San Diego, California
facility goods and products, valued in excess of $50,000, di­
rectly from suppliers located outside the State of California.
Respondent admits that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ISSUES
The amended consolidated complaint alleges, and counsel
for the General Counsel argues, that, on or about July 14,
1998,2 Respondent and the Union entered into a complete col­
lective-bargaining agreement, encompassing the terms and
conditions of employment of all the drivers, warehousemen,
technicians, and installers employed by Respondent at its San
Diego, California facility and that, since on or about July 21,
Respondent engaged in acts and conduct, violative of Section
8(a)(1) and (5) of the Act, by ignoring the Union’s request that
it execute a memorialized version of the parties’ above-
described agreement and delaying in executing said document.
It is further alleged and argued that Respondent engaged in
further violations of Section 8(a)(1) and (5) of the Act by uni­
laterally, and without giving prior notice to the Union and
without affording it an opportunity to bargain, discontinuing a
policy of allowing bargaining unit employees to use company
vehicles for training and license testing purposes, discontinuing
driver safety bonuses for bargaining unit employees, and elimi­
nating a Christmas bonus for bargaining unit employees. In
defense, Respondent argues that, at no time prior to August 13,
did there exist a collective-bargaining agreement between the
parties and that any delay in executing said agreement was not
unreasonable; that it never implemented a policy of permitting
employees to use company vehicles for training and testing
purposes; that the driver safety bonus and the Christmas bonus
were waived by the Union during bargaining and by contract;
and that the Christmas bonus did not constitute a term and con­
dition of employment.
IV. THE ALLEGED UNFAIR L ABOR PRACTICES
A. Respondent’s Delay in Executing The Parties’ Collective-
Bargaining Agreement
The basic facts are not in dispute. Thus, the record estab­
lishes that Respondent, an Arizona corporation, is engaged in
business as a distributor of janitorial supplies and that it oper­
ates a warehouse and distribution facility in San Diego, Cali­
fornia. Charles Wax is president of Respondent; Lisa Kay is
the vice president of human resources; and both individuals
maintain offices at Respondent’s San Diego facility. The re-
cord further establishes that, on August 13, 1997, the Union
was certified by the Board as the exclusive collective-
bargaining representative of all drivers, warehousemen, techni-
2 Unless otherwise stated, all events occurred during 1998.
cians, and installers employed by Respondent at its San Diego,
California facility; that, in mid-October 1997, Respondent and
the Union commenced negotiations for a collective-bargaining
agreement, with Clarke Stillwagen, its president, and Arthur
Cantu, its recording secretary, representing the Union and
Thomas Puffer, the chairman of the executive committee of the
San Diego Employers Association, and Lisa Kay representing
Respondent; that the parties thereafter held 16 negotiating ses­
sions; that, on or about June 25, during a bargaining session at
Puffer’s office, Respondent presented the Union with a “last,
best, and final” contract offer; that Respondent’s employees
ratified this final offer on or about July 13; and that, on the
same day or the day after ratification, Stillwagen notified Puffer
by telephone of the employees’ acceptance of Respondent’s
final offer.
The record reveals that Stillwagen was responsible for plac­
ing the parties’ collective-bargaining agreement into draft form
and that, in doing so, he utilized two documents—Respondent’s
June 25 final offer (GC Exh. 2) and a document entitled “Com­
bined Proposal” (R. Exh. 1), which is a compilation of each of
the parties’ tentative agreements (TA’s) reached during the
course of the bargaining. Two days after the employees’ ratifi­
cation of Respondent’s final offer, on July 15, the Union’s
president completed the draft agreement (GC Exh. 3) and, by
hand, delivered copies to Lisa Kay at Respondent’s facility and
to Puffer’s office.3 Stillwagen heard nothing from either Kay
or Puffer until he received a letter, dated July 21, from Kay.4 In
her letter, after assuring Stillwagen that she would “proofread
[the draft collective-bargaining agreement] for any corrections
or omissions,” the latter stated that she would “also need to
review it with Tom Puffer to ensure the contract you forwarded
accurately sets forth the company’s last proposal. As you are
probably aware, Tom is out of the country on vacation and will
not be back until August 5. Also, I am on vacation the week of
3 With the draft agreement, Stillwagen included a cover letter, in
which he stated that the draft agreement was being submitted “for sig­
nature” and invited Lisa Kay to advise him of any “additions or correc­
tions.” With regard to who was authorized to approve and execute the
completed collective-bargaining agreement, Stillwagen testified that
“there were several discussions along that line. . . . My understanding
from the beginning was that the negotiating team was authorized by
Charles Wax to negotiate a [contract] and my understanding was both
parties at the table could reach agreement” and “that the Waxie negoti­
ating team would keep Charles Wax appraised of what was going on
. . . .” After being questioned further as to whether Wax would have to
approve any agreement reached at the bargaining table, Stillwagen
averred that he “certainly understood that [Charles Wax] would review
the document and would ultimately sign the document” as Respon­
dent’s official, who would have the right of final approval of the
agreement. On this identical point, Puffer testified that, during the
course of the bargaining, he and Kay “many times” told the union ne­
gotiators that Charles Wax would have final approval over what was
negotiated at the bargaining table.
4 Kay testified that she did not immediately examine the draft agree­
ment as “. . . Tom Puffer was on vacation and he was the person I used
for these kinds of things” and “I was busy,” having to prepare for travel
to other company divisions the following week. Apparently, Kay’s
work schedule is less than 5 days a week.
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
August 5.”5 Ten days later, on July 31, Kay wrote to Still­
wagen that “I have now had an opportunity to review the
document that you sent us. It is not suitable for signature, be-
cause it does not accurately reflect WAXIE’s proposal.” She
continued, stating her desire to “meet and discuss these issues.
I will be out of town until August 11, and will need some time
upon my return to talk with Tom Puffer about this situation (as
you may know, Tom has been out of town). I will also be out
of town on business on August 12. Please get in touch with me
and let me know a time that is convenient for you to meet after
I return.”
The record further reveals that, while, according to Lisa Kay,
she believed he would not return from his European cruise until
August 5, Thomas Puffer, in fact, returned from his trip on July
28, but that he did not return to work until Monday, August 3.6
Puffer testified that the first indication he had of problems in
the negotiated collective-bargaining agreement was a telephone
call from the plant manager at Respondent’s San Diego facility,
who told him that Kay was on vacation and that the negotiated
contract did not cover Respondent’s Christmas bonus. Shortly
thereafter, Puffer received a memorandum, via fax, from the
Union’s attorney, Richard Prochazka, stating “it is imperative
that representatives of [the Union] meet with you to review any
alleged `problems’ with the contract previously drafted and
delivered to your office nearly three weeks ago” and threaten­
ing the filing of an unfair labor practice charge over Respon­
dent’s failure to meet. In response, Puffer replied to Prochazka
by fax, enclosing a copy of Kay’s July 31 letter and stating, “I
don’t know what problems she has, but will meet with the Un­
ion upon her return to resolve the matter.” As the attorney had
warned, the Union filed its unfair labor practice charge in Case
21–CA–32812 on August 6. A meeting, between the parties,
for the purpose of resolving the “issues,” raised by Kay, was
scheduled for 2:30 p.m. on August 13, at Puffer’s office.
While bargaining on the parties’ collective-bargaining
agreement remained unresolved, on July 21, Yale Ogden
Willis, an inventory analyst and bargaining unit employee at
Respondent’s San Diego facility, began, during break periods,
to solicit fellow bargaining unit employees to place their signa­
tures on a petition, which contained the following language:
WE, THE UNDERSIGNED, DO NOT WISH TO BE
REPRESENTED BY LOCAL 36 for the purpose of collec­
tive bargaining. The undersigned are petitioning the National
Labor Relations Board to conduct a vote to see if there re-
5 With regard to the matter of vacations, there is no dispute that
Puffer left San Diego for a European cruise vacation on July 15 and did
not return until July 28; that Charles Wax was on a European vacation
from some time in July through August 11; and that Kay was on vaca­
tion during the week of August 3, not returning to work until August
11. Stillwagen testified that he was aware of Puffer’s vacation but that
he was not aware of Kay’s vacation plans. The latter testified that,
during breaks in the bargaining, she informed the Union negotiators of
her intent to take a trip with her family to Kansas in early August.
Counsel for the General Counsel does not contend that an adverse
inference be drawn from the vacations taken by Puffer, Wax, and Kay
in July and August, and I shall not draw one.
6 Puffer denied any communications with Kay after his return from
his trip through August 3.
mains a majority of employees that continue to want union
representation. Our signatures below represent a request that
the NLRB conduct a vote.7
Analysis of General Counsel’s Exhibit 12, the petition, dis­
closes that 16 employees signed on July 21; that all remaining
employee signatures but one were obtained by Willis in July;
and that the last signature is dated August 13. Willis testified
that he solicited signatures by going “. . . to the individual em­
ployees and [asking] them if they would be interested in sign­
ing the petition.” He added that no supervisors observed him
while soliciting signatures.
As scheduled, at approximately 2:30 p.m. on August 13,
Stillwagen, Kay, and Puffer met in Puffer’s office. Indicative
of the importance of the session to the parties, each party was
also represented by an attorney—Prochazka for the Union and
Therese Hymer for Respondent, who acted as its spokesperson.
While the significance of the contractual issues, which Kay
intended to raise with the Union’s representatives, is in dispute,
there is no disagreement as to what occurred during the parties’
two hour meeting. Thus, they discussed no less than 10 differ­
ent contract language changes—all of which Clarke Stillwagen
superciliously described as “items, typographical errors, omis­
sions. . . . nothing having to do with negotiations” but several
of which Thomas Puffer described as substantive in nature.
Testifying that, at some point subsequent to July 15, and prior
to the meeting, he became aware that the wage rates, set forth
in Article IX of the draft collective-bargaining agreement were
incorrect, having been “inadvertently” copied from a rejected
union wage rate proposal and not from Respondent’s final of­
fer, Stillwagen distributed copies of a “corrected wage page” to
Respondent’s representatives at the outset of the meeting.8
Thereafter, during the meeting, the parties worked from a copy
of the Union’s draft agreement, which contained the corrected
wage rate page, and, using a pen, wrote in all agreed-upon
changes, initialing each one. With regard to Kay’s issues, Re­
spondent desired that the words “employees shall be compen­
sated within the following rate ranges,” which appear in its
final offer provision above the wage rates, be inserted above the
wage rates, and the Union agreed.9 Next, also in article IX, in
the first of the “General conditions,” Respondent requested and
the Union agreed to change “swing” to “second” shift. Accord­
ing to Stillwagen, “Well, the company . . . preferred the use of
second shift to swing shift.” Third, in the first sentence of Sec­
tion 1 of article XVI, the Roman numeral XV is inserted after
the word article. According to Stillwagen, this was a clerical
error as he “left out the article number that it was referencing.”
Next, Respondent pointed out, and the Union agreed to correct,
what appears to be a typing error on page 14 of the draft con-
tract. Fifth, in Section 2 of article XXI, the sick leave article,
Respondent demanded and the Union agreed to change “sec-
7 Willis testified that he prepared the petition after speaking to a
Board agent, who helped him with the language.
8 There is no record evidence that, prior to August 13, Stillwagen
ever informed either Kay or Puffer that the draft agreement, which he
had delivered to Respondent for signature, contained an incorrect wage
rate structure.
9 Stillwagen termed this a “clarification.”
WAXIE SANITARY SUPPLY 309
ond” to “first (1st) day of sick leave.” As to this change, Still­
wagen testified that, while “there had been discussions
throughout the negotiations on whether . . . sick leave should be
paid from the first day or the second day and my notes indi­
cated it should be the first day,” making the change represented
“no problem” to the Union. In fact, as Puffer admitted during
cross-examination, Stillwagen had not made a mistake, for, on
April 22, the parties reached a TA as to section 2, which con­
tains the language of the draft agreement.
The next change is a deletion of the last sentence of Section
2 of article XXVI, the funeral leave provision. Stillwagen did
not recall the discussion, but stated that the sentence was “ex­
cess language,” which had been “inadvertently” inserted, and
“we deleted it.” He added that no bargaining over the change
occurred but rather “it was a matter that it should not have been
in there, so we took it out.” Analysis of the deleted language
establishes that such was contrary to the parties’ TA on the
provision, which was reached on March 4, and that it gave de-
fined bargaining unit employees a day of paid leave to which
they were not otherwise entitled. While Stillwagen minimized
it, Puffer described the above as a substantive change. There is
no dispute that the seventh change, the insertion of a lower case
“k” in article XXX, appears to have been an obvious typing
error. As to the eighth change, the language of article XXXI,
pension plan, is crossed out and the following language is in­
serted—“The Company agrees to make this plan available un­
der the same conditions and limitations as exists for like em­
ployees.” Stating that the deleted language did not represent a
mistake and that the inserted language is new, Stillwagen testi­
fied that Respondent’s representatives believed that the lan­
guage of the article “should be more expansive” and that the
union representatives had no objection to the change. He was
uncontroverted in these regards. Ninth, in article XXXII, per­
formance appraisal, the following words were inserted—“No
employee shall receive a reduction of pay as a result of the
performance appraisal.” According to Stillwagen, Respon­
dent’s representatives correctly pointed out that the above lan­
guage appears in its final offer, and he admitted that “. . . I did,
in fact, delete it. . . . That was an error on my part.” Puffer
testified that he viewed Stillwagen’s omission as a substantive
change. Tenth, with regard to the effective date of the parties’
agreement, article XXXVII, Stillwagen conceded that there had
been no prior bargaining on this subject and that the date, July
13, which he placed in the draft agreement, was his own choice.
He added that Respondent requested the change to August 1, so
that the effective date “would coincide with their payroll peri­
ods,” and “we had no objection to that.” While Stillwagen
denied that a collective-bargaining agreement’s effective date
constitutes a substantive provision, Puffer maintained that it
was substantive10 and that it “would have had to have been
negotiated.” However, Puffer then minimized the significance
10 While Puffer could point to no cost problems with the Union’s
choice of an effective date, Kay stated that there would have been an
economic benefit to two individuals had July 13 remained as the effec­
tive date—“a couple of employees needed to be moved to the minimum
of the pay range” and “it would have caused them to be paid a higher
rate of pay . . . .”
of the issue,11 stating that Stillwagen’s choice of a date was
controversial for no reason other than all of the agreements,
which he negotiates, have effective dates at the beginning of a
month.
At the conclusion of the bargaining and after the Union had
acceded to all of Respondent’s requested changes, Stillwagen
executed the changed draft agreement, General Counsel’s Ex­
hibit 10 and, according to Lisa Kay, demanded that one of Re­
spondent’s representatives sign it “right then and there.”12
However, according to Stillwagen, attorney Hymer “said they
couldn’t sign it. They weren’t prepared to sign it.” While,
during direct examination, he could not recall Hymer mention­
ing Charles Wax, Stillwagen conceded, during cross-
examination, that Hymer “may” have said she wanted one final
review of the contract before giving it to Wax for signature. On
this point, Puffer and Kay each testified that the completed
agreement had to be given to Wax for his approval and signa­
ture. The meeting ended at approximately 4:30 that afternoon,
with Hymer taking General Counsel’s Exhibit 10 for review.13
There is no dispute that Respondent failed to execute a me­
morialized version of General Counsel’s Exhibit 10, General
Counsel’s Exhibit 11, until September 16—a month after the
parties apparently resolved all problems regarding their collec­
tive-bargaining agreement. In this regard, on Friday, August
14, the day after the parties’ meeting, employee Willis filed a
decertification petition, seeking to decertify the Union as the
exclusive bargaining representative for Respondent’s drivers,
warehousemen, technicians, and installers employed at its San
Diego facility, with the Board. Also, at some point during the
day, Wax received General Counsel’s Exhibit 10 from attorney
Hymer for his signature. Lisa Kay admitted that, upon being
informed of the filing of the decertification petition that day,
Wax decided against executing the collective-bargaining
agreement and that, in view of the decertification petition and
Respondent’s need to research the Board’s rules in circum­
stances such as involved herein and to devise a strategy, he
continued delaying in doing so. A week later, on August 21,
Stillwagen wrote to Kay and Puffer, reminding them that they
had been given a “complete copy” of the parties’ collective-
bargaining agreement, containing each of the changes requested
by Respondent, on August 13, and requesting information as to
when Respondent would execute the document. On September
1, Kay wrote to Stillwagen, noting that 21 individuals—or two-
thirds of the bargaining unit employees—had executed the
decertification petition and that the said petition represented “a
change in circumstances” and that, therefore, as the Union’s
representative status was open to “question,” Respondent no
longer considered it appropriate “for [it] to sign and thus enter
into an agreement that relates to a group of employees who now
overwhelmingly appear not to want . . . representation by the
11 Puffer averred that “in all candor, the effective date is not a prob­
lem.”
12 Stillwagen recalled that it was Prochazka who demanded that it be
signed then.
13 Kay testified that Charles Wax was working in his office late that
afternoon but was in the midst of a meeting and unavailable.
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[Union].”14 Two days later, on September 2, Richard Pro­
chazka wrote to Therese Hymer, arguing that the filing of the
decertification petition did not represent a lawful change in
circumstances so as to permit Respondent to refuse to execute
the parties’ contract, and, on September 14, Hymer replied to
Prochazka, writing that it had been informed that no less than
two-thirds of the bargaining unit employees supported the de-
certification petition; that, nevertheless, the Union was “forcing
[Respondent] to sign and implement the agreement in spite of
the majority of the employees’ apparent desires; and that
Charles Wax would execute the collective-bargaining agree­
ment. As stated above, he did so on September 16.
As alleged in the amended consolidated complaint and ar­
gued by counsel for the General Counsel, upon receiving the
final contract draft on July 15,15 Respondent engaged in acts
and conduct, violative of Section 8(a)(1) and (5) of the Act, by
“engaging in a series of unreasonable delays in executing the
collective-bargaining agreement from July through September
. . . .” In contrast, counsel for Respondent argues that the draft
agreement, which Stillwagen presented to Respondent on July
15, did not “reflect” a complete agreement between the parties;
that, assuming complete agreement was reached on August 13,
such was subject to review and ratification by Charles Wax;
and that Wax did not unreasonably delay the execution of the
collective-bargaining agreement. Analysis of the record as a
whole convinces me that Respondent did, in fact violate Sec­
tion 8(a)(1) and (5) of the Act by unreasonably delaying the
execution of the parties’ collective-bargaining agreement—not
from July 15, as alleged in the amended consolidated complaint
but, rather, for the 32-day time period from August 14 through
September 16, 1998.
In agreement with counsel for Respondent, my conclusion,
that Respondent engaged in no conduct, violative of Section
8(a)(1) and (5) of the Act prior to August 14, is predicated upon
my belief that, inasmuch as the parties did not arrive at a meet­
ing of the minds on all substantive terms so as to form a com­
plete collective-bargaining agreement until August 13, Respon­
dent had never been under any obligation to execute the draft
collective-bargaining agreement, which was presented to it by
Clarke Stillwagen on July 15. In this regard, pursuant to Sec­
tion 8(d) of the Act, either party to a collective-bargaining
agreement is obligated to execute, or assist in executing, a me­
morialized version of said agreement if requested to do so by
the other party. H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1947);
Grocery Warehouse, 312 NLRB 394, 397 (1993); Kennebec
Beverage Co., 248 NLRB 1298 (1980). Further, the Board has
held that, in fulfilling its Section 8(d) mutual, on-going obliga­
tion to bargain in good faith, neither party may engage in dila-
14 Specifically, Kay wrote that “the decertification petition . . . raises
a clear question about the Teamsters representation of the unit.”
15 While the amended consolidated complaint alleges the existence
of a collective-bargaining agreement on or about July 14, in his post-
hearing brief, counsel for the General Counsel is silent on the point and
his arguments herein presuppose the existence of an agreement. In his
post -hearing brief, counsel for the Union does advance the argument
that “when the Union accepted the Employer’s final offer . . . . the
acceptance of that offer constituted the formation of a contract.” Pre­
sumably, this is also the position of the General Counsel.
tory acts and conduct which result in unreasonable delay in any
aspect of the collective-bargaining process, including the exe­
cution of a memorialized agreement. Lee Lumber & Building
Material, 306 NLRB 408, 420 (1992); Thill, Inc., 298 NLRB
669, 672 (1990); Pioneer Broadcasting, 202 NLRB 1005, 1009
(1973). However, the Board cautions that the above-described
obligation to execute a memorialized version of a complete
collective-bargaining agreement “arises only after a meeting of
the minds on all substantive issues has occurred”—when the
agreement covers all the essential terms. Alexandria Manor,
317 NLRB 2, 5 (1995); Canyon Coals, Inc., 316 NLRB 448,
452 (1995); Transit Service Corp., 312 NLRB 477, 481 (1993);
Ebon Services, 298 NLRB 219, 224 (1990); Castro Village
Bowl, 290 NLRB 423, 432 (1988); Koenig Iron Works, 282
NLRB 717, 718 (1987); Luthor Manor Nursing Home, 270
NLRB 949 at fn. 1 (1984). On this point, while the Board law
is that one party’s “inadvertent errors” in a draft agreement or
“minor deviation” therein from proposals submitted by the
other party may not be indicative of any lack of agreement
between the parties to collective bargaining (Grocery Ware-
house, supra; Taylor Bus Services , 284 NLRB 530 (1987)), it
has long held that a lack of a meeting of the minds may be in­
ferred when a draft agreement contains discrepancies which
“seriously [alter the] meaning of a respondent’s proposals” or
when discrepancies “may be traced to ambiguity for which
neither party is to blame” or to “differences in the understand­
ing of the parties.” Henry Bierce Co., 307 NLRB 622, 628
(1992); Castro Village Bowl, supra at 432; Automatic Plastic
Molding Co., 234 NLRB 681, 682 (1978). While there is no
dispute that the bargaining unit employees accepted Respon­
dent’s final offer and that Stillwagen ostensibly based his July
15 draft agreement, which he presented to Respondent for sig­
nature, upon the final offer and all prior tentative agreements,
he admitted that the agreement’s effective date, July 13, was a
date selected by him absent any prior bargaining over the sub­
ject with Respondent’s representatives, Thomas Puffer and Lisa
Kay. Clearly, the effective, commencement, or termination
dates of collective-bargaining agreements are material terms,
and the Board has held that a lack of agreement on these issues
alone may signify the lack of a complete agreement on all sub­
stantive terms so as to justify an employer’s refusal to execute a
written collective-bargaining agreement. Transit Service Corp.,
supra at 482–483; Koenig Iron Works, supra; Mercedes-Benz of
North America, Inc., 258 NLRB 803 at 803 (1981). Further, in
section 2 of the funeral leave article of the July 15 draft agree­
ment, Stillwagen inserted a second sentence, which is not cov­
ered by the parties’ March 4 tentative agreement on the article
and which would have had the effect of granting defined bar-
gaining unit employees a day of paid leave to which they were
not otherwise entitled. There is no record evidence that this
language was ever the subject of bargaining, and Stillwagen’s
explanation, that the sentence was inadvertently included in the
draft agreement, is not particularly credible. In my view, the
parties’ dispute over the inserted sentence was clearly one of
substance and not one of mere excessive language and repre­
sented, at worst, the Union’s conscious effort to deceive Re­
spondent in order to gain an additional contract benefit or, at
best, a serious misunderstanding over an aspect of the funeral
WAXIE SANITARY SUPPLY 311
leave article. Finally, the copies of the draft agreement, which
were presented to Respondent on July 15, mistakenly contained
a wage rate scale, which had been rejected by the Union and
had not been part of Respondent’s final offer to the former and,
as to which, despite being aware of its error for approximately
30 days, the Union failed to correct until August 13. Inasmuch
as the draft agreement’s wage scale was lower than what
Respondent had proposed in its final offer and as the inclusion
of the previously rejected wage scale proposal was left unex­
plained by the Union, such represented a difference in under-
standing regarding Respondent’s wage rates offer until clarified
by the former. In these circumstances,16 it matters not that
Respondent failed to immediately notify the Union of its prob­
lems with the draft agreement, and, given the lack of agreement
over the effective date of the agreement, inclusion of the fu­
neral leave article language about which there had never been
agreement and perhaps no bargaining, and the inclusion of
previously rejected wage rates in the draft agreement, I con­
clude that, prior to August 13, there existed no meeting of the
minds, between the parties, over all substantive terms of so as
to signify a complete collective-bargaining agreement and that,
therefore, Respondent was under no obligation to have exe­
cuted the Union’s July 15 draft agreement. Transit Service
Corp., supra; Henry Bierce Co., supra.
However, there is no dispute that, at the parties, bargaining
session on August 13, the Union corrected the wage rates pro-
vision and agreed to each change in the collective-bargaining
agreement, demanded by Respondent, including the effective
date and the removal of the disputed sentence from the funeral
leave provision; that at conclusion of the 2-hour bargaining
session, the parties had arrived at a complete collective-
bargaining agreement; that Stillwagen immediately executed
the said agreement, General Counsel’s Exhibit 10; and that he
then demanded it be executed by Respondent’s representatives.
I credit Puffer and Kay that Attorney Hymer refused Still­
wagen’s demand and asserted that she wanted an opportunity to
review the document one last time before presenting it to
Charles Wax for signature and further find that Hymer pre­
sented General Counsel’s Exhibit 10 to Charles Wax for signa­
ture the next day, August 14, and that, as admitted by Kay, later
in the day, upon being informed of the filing of the decertifica-
16 The crux of counsel for the General Counsel’s argument in sup-
port of the amended consolidated complaint allegation of unlawful
delay since July 15, is that Respondent was aware of the distribution of
the decertification petition and delayed in meeting with the Union until
a sufficient number of signatures were collected by employee Willis.
However, assuming, which I do not, an obligation by Respondent to
have executed the July 15 draft contract, there is not a scintilla of re-
cord evidence that Respondent was aware of Willis’ activities. More-
over, counsel makes no contention that Puffer, Kay, or Wax scheduled
their vacations in order to conceal otherwise unlawful delay. Further, I
find nothing sinister in Kay’s desire to discuss her problems with the
draft contract with Puffer before meeting with the Union or the latter’s
desire to meet with Kay prior to meeting with the Union. Finally, while
it is true that Kay was incorrect about the date on which Puffer was to
return from his vacation and perhaps they could have met and discussed
her issues with the draft agreement prior to her vacation, it is also true
that Wax was then on vacation and would not have been able to execute
the draft agreement before August 11.
tion petition, Wax decided against signing the contract and
continued to delay executing the agreement until September 16,
in view of the decertification petition and Respondent’s need to
research Board rules and to devise a strategy. Inasmuch as I
find nothing unreasonable about attorney Hymer’s desire for a
final opportunity to examine the document I, therefore, con­
clude that Respondent’s obligation, pursuant to Section 8(d) of
the Act, to execute General Counsel’s Exhibit 10, without de-
lay, attached immediately upon presentation of the document to
Wax on August 14. It is current Board law that “the mere filing
of a decertification petition” does not itself suspend an em­
ployer’s on-going obligation, pursuant to Section 8(d) of the
Act, to bargain in good faith and does not require or permit an
employer to withdraw from bargaining or to refuse to execute a
collective-bargaining agreement. Lee Lumber & Building Ma­
terial, supra at 419; Dresser Industries, 264 NLRB 1088, 1089
(1982). Based upon Kay’s admission, it is clear that Respon­
dent’s basis for its initial refusal and subsequent delay in exe­
cuting the August 13 collective-bargaining agreement until
September 16 was the filing of the instant decertification peti­
tion, and Kay’s comment, in her September 1 letter to Still­
wagen, that the said petition “raises a clear question about the
Teamsters representation of the unit” is, of course, contrary to
Board law.17 While, in his post-hearing brief, counsel for Re­
spondent beneficently characterizes his client’s delay, for the
purpose of analyzing the legal and practical effects of the de-
certification petition, as “prudent and reasonable,” such was
also patently violative of Section 8(a)(1) and (5) of the Act, and
I so find.
B. Respondent’s Unilateral Discontinuance of Driver Training
For Its Bargaining Unit Employees
The record establishes that employee, Ronald D. Mathews,
worked for Respondent as a warehouse worker from May 1990
through April 1998 and that, February 1998, he decided to seek
a transfer to a “commercial driver” position with Respondent.
Mathews testified that, in order to be employed in said job clas­
sification, an individual must possess a commercial driver’s
license and that, in order to qualify for and obtain such a license
from the State of California Department of Motor Vehicles, the
person must, initially, pass a written test in order to obtain a
permit, then train with a commercially licensed driver in the
type of commercial vehicle18 in which he will take the driving
test, and then take the driving test, using the same type vehicle
in which he practiced. According to Mathews, on February 9,
he obtained his permit and informed Ken Hubbard, Respon­
dent’s driver’s manager, that he had done so and asked for his
permission to train by driving a company truck. Hubbard gave
his permission and, thereafter in February, on “two or three”
17 In Dresser Industries, Inc., the Board noted that “the filing of a
decertification petition, standing alone, does not provide a reasonable
ground for an employer to doubt the majority status of a union.” Id. at
1088.
18 Mathews described a commercial vehicle as one which requires a
commercial license to operate it with endorsements particular to the
type of vehicle.
312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
occasions,19 he drove a company truck,20 with Hubbard riding
with him, making deliveries. Mathews further testified that, on
the last occasion in which he drove a company truck, he com­
pleted a delivery; that, upon returning to Respondent’s facility,
he was approached by his supervisor, Eddie Azucena, the
warehouse supervisor; and that Azucena told him “it had come
from upstairs that I was no longer allowed to drive company
vehicles that I didn’t have an actual license for. . . . I asked him
who it was that told him that I was no longer allowed to drive
the trucks . . . . He told me it had come from Jim Stowers,”
Respondent’s operations manager. Subsequently, according to
Mathews, in February or March, he spoke to Stowers in the
warehouse, and “I asked him why I had been denied driving
company . . . commercial vehicles. . . . He said he didn’t know
and that he would get back to me on it.” Approximately a week
and a half later, Mathews again approached Stowers in the
warehouse, and “I asked him again why I was not allowed to
drive the company . . . commercial vehicles, and he told me . . .
that it had been a corporate wide decision to stop the driver
training on company vehicles . . . and that I was not being sin­
gled out.” Mathews testified that he had personal knowledge of
one other warehouse employee, Dave McCabe, who, in order to
become a driver for Respondent, trained for his commercial
driving license by driving a company commercial vehicle—“I
witnessed him driving a company vehicle to obtain” his license
with Alberto Arguilez, a senior driver in late 1997 or early
1998. During cross-examination, Mathews testified that, while
he eventually passed his driving test and received a Class A
commercial driver’s license, employees are required to have
only Class B commercial licenses in order to operate Respon­
dent’s bobtail trucks.
With regard to this allegation of the amended consolidated
complaint, Lisa Kay, who denied that Respondent ever had an
company-wide driver training program, confirmed that Dave
McCabe had been permitted to train for a commercial driver’s
license, on company trucks in 1996 and 1997. She did not
know why McCabe had been given such permission but testi­
fied that such had not happened in any other company divi-
sion.21 During cross-examination, she added that Harry Babb,
Respondent’s vice-president of operations, made the decision to
no longer permit employees to train on company trucks for
commercial licenses and that such was “a corporate-wide deci­
sion,” which was “part of our strategic plan” to make policy in
the company’s divisions “consistent.” With regard to Mathews,
she stated that “what happened was when [Babb] realized that
there was an employee in San Diego who had used a company
vehicle and he realized there was insurance risks and so on, he
wanted to make sure that this wasn’t occurring in other divi-
19 During cross-examination, Mathews was able to recall the details
of two occasions, on which he drove a company truck. As to the possi­
ble third, “. . . I wouldn’t have any details on that.”
20 Mathews described Respondent’s trucks as being “box trucks” or
“bobtails.” The vehicles are 26 feet in length, have six wheels, and
carry a cargo container on the back.
21 During cross-examination, Kay mentioned another former ware-
house employee, Benny Blake, who moved from a warehouse job to
that of a driver and who possibly trained for his commercial driver’s
license in company trucks.
sions . . . too. . . . [Babb] found out that Bob Mathews had used
a truck. His newly appointed supervisor had allowed it and
probably did know that he shouldn’t be doing it. And as soon
as [Babb] learned that had occurred, he immediately made sure
everyone knew that was not an okay thing to do.” Finally, it
was uncontroverted that Respondent never informed the Union
of Babb’s “directive” to no longer permit employees to train for
commercial driver’s licenses on company trucks or provided
the Union with an opportunity to bargain prior to placing said
directive into effect.
The amended consolidated complaint alleges that Respon­
dent’s unilateral elimination of its policy, allowing employees
to use its vehicles for training for the commercial driver’s li­
cense test, was violative of Section 8(a)(1) and (5) of the Act.
It is, of course, well settled that an employer violates said sec­
tion of the Act by unilaterally changing the wages, hours, and
other terms and conditions of employment of bargaining unit
employees22 without first providing their collective-bargaining
representative with notice and a meaningful opportunity to
bargain about the change. NLRB v. Katz , 369 U.S. 736 (1962);
Bryant & Stratton Business Institute, 321 NLRB 1007 (1996);
Mercy Hospital of Buffalo, 311 NLRB 869,873 (1993); Associ­
ated Services for the Blind, 299 NLRB 1150, 1150–1151
(1990). As stated by a United States Court of Appeals, the vice
of this unfair labor practice “. . . is that the employer has
changed the existing conditions of employment. It is this
change which is prohibited and which forms the basis of the
unfair labor practice.” NLRB v. Dothan Eagle, 434 F.2d 93, 98
(5th Cir. 1970). However, it is clear that not all unilateral
changes in bargaining unit employees’ terms and conditions of
employment constitute unfair labor practices. Thus, the unilat­
erally imposed change must be “a material, substantial, and a
significant” one and must have a “real impact” on, or be “a
significant detriment to,” the employees or their working condi­
tions. Outboard Marine Corp., 307 NLRB 1333, 1339 (1992);
UNC Nuclear Industries , 268 NLRB 841, 847 (1984); Trading
Port Inc., 224 NLRB 980, 983–984 (1976); Pacific Diesel
Parts Co., 203 NLRB 820, 824 (1973); Coca Cola Bottling
Works, Inc., 186 NLRB 1050, 1062 (1970), affd. Retail, Whole-
sale and Department Store Union v. NLRB, 466 F.2d 380 (D.C.
Cir. 1972). In support of the amended consolidated complaint
allegation that Respondent’s unilateral elimination of its driver
training program for bargaining unit employees at its San Diego
facility was violative of Section 8(a)(1) and (5) of the Act,
counsel for the General Counsel, citing Associated Services for
the Blind, supra at 1162, argues that, for bargaining unit em­
ployees who sought to become drivers for Respondent, the
opportunity to train for the commercial driver’s license test on
22 In Ford Motor Co. v. NLRB, 441 U.S. 488, 498 (1979), the Su­
preme Court defined the mandatory subjects of bargaining as those
matters which are “plainly germane to the ‘working environment’” and
“not among those ‘managerial decisions, which lie at the core of entre­
preneurial control.’” Normally, the mandatory subjects of bargaining
concern anything having to do with bargaining unit employees’ wages,
hours, or other terms and conditions of employment. Phelps Dodge
Mining Co., 308 NLRB 985, 999 (1992), enf. denied 22 F.3d 1493,
1496–1498 (10th Cir. 1994); Johnson-Bateman Co., 295 NLRB 180,
182 (1989).
WAXIE SANITARY SUPPLY 313
company vehicles was a benefit, and, as such, constituted a
mandatory subject of bargaining—a term or condition of em­
ployment, which could not be unilaterally changed. Contrary to
counsel for the General Counsel, I do not believe that the re-
cord evidence warrants a conclusion that Respondent ever had
in effect a driver training program for its employees, who de-
sired to obtain commercial driver’s licenses in order to become
drivers for Respondent. As recognized by counsel for the Gen­
eral Counsel, the certain record evidence is that, prior to
Mathews being denied permission to continue doing so, just
one other employee, Dave McCabe, had been permitted to train
for a commercial license in company trucks, and the fact that,
over the years, one other individual had been permitted to do so
is hardly sufficient to establish a policy or past practice, let
alone one which arises to a term or condition of employment.
Moreover, the fact that Respondent felt compelled to publish a
company-wide directive, that no employees should be afforded
permission to train for commercial driver’s license tests in
company trucks, was merely reflective of Respondent’s desire
to ensure that a Mathews-type situation would not arise else-
where and not of a desire to eliminate a corporate wide past
practice, about which there exists no record evidence. Finally,
in agreement with counsel for Respondent, assuming the exis­
tence of a policy and a unilateral change, there is no record
evidence that Respondent’s denial of continued permission to
employee Mathews to practice for his commercial driver’s
license test on a company truck had any negative or detrimental
impact upon his job as a warehouse worker or his ability to
obtain a commercial driver’s license and, accordingly, appears
not to have risen to the level of a substantial and material
change in terms and conditions of employment. Outboard
Marine Corp., supra; Coca Cola Bottling Works, Inc., supra.
Accordingly, I shall recommend that the allegations of para-
graph 9(a) of the amended consolidated complaint be dis­
missed.
C. Respondent’s Unilateral Discontinuance of its Driver Safety
and Holiday Bonus Programs
At the hearing, the parties stipulated that, in 1994, Respon­
dent implemented a driver safety bonus program at its San
Diego facility whereby bargaining unit drivers, who had not
been involved in any chargeable accidents during the previous
year, earned an additional $.25 per hour beyond their regular
wage rates and that drivers, who continued to be accident free
for an additional year, received an additional $.05 per hour up
to a maximum of $1.00 per hour over their regular wage rates.
The parties further stipulated that Respondent continued paying
the driver safety bonus to bargaining unit drivers through Sep­
tember 1 but, since said date, has discontinued the foregoing
policy and practice. Employee, Donald Templeton, a driver for
Respondent at its San Diego facility, testified that he first
learned that Respondent was no longer paying the driver safety
bonus in September when “it was no longer on my paycheck. It
[had been] listed on the paycheck. The pay stub is safety and
there was no amount in there on the one pay period in the end
of September. . . . I asked Jim Stowers, the operations manager,
and he said it had been discontinued because [the driver safety
bonus program] wasn’t in the Union contract.”
As to Respondent’s holiday bonus program, there is no dis­
pute that, since, at least, 1985, the company has maintained in
effect an annual employee bonus program, entitled “All Sell All
Grow,” for bargaining unit employees. Thus, employee
Templeton testified that he received bonus payments in 1995,
1996, and 1997 and that the bonus checks were distributed at
the annual employee Christmas party. According to
Templeton, all employees, who had been employed for, at least
one year, were eligible to receive the bonus, the amount of
which, according to employee, Angelo Lieras, was based upon
Respondent’s profit for the year. On this point, Lisa Kay testi­
fied that the holiday bonus is based upon “the profitability of
the company” and that the mount of the bonus, which each
employee receives, is a percentage of his or her annual wages,
based upon a formula, which takes into account Respondent’s
percentage growth in gross profit margin each year and utilizes
a “multiplier” for calculating the bonus percentage. She added
that Respondent must achieve a certain profitability level be-
fore the bonus is paid and that, notwithstanding the calculation
of the bonus percentage, whether a department’s employees
receive the entire bonus or merely a portion is within the discre­
tion of the department manager. There is also no dispute that,
while other employees of Respondent did receive the bonus,
bargaining unit employees did not receive the holiday bonus in
1998. According to Templeton, “a few weeks before the party,
Jim Stowers . . . caught each one of us by ourselves and in-
formed us that we weren’t to receive a . . . bonus this year be-
cause it wasn’t in the Union contract.”
Arthur Cantu testified that, on or about August 27, 1997,
subsequent to the Union’s certification and prior to the com­
mencement of bargaining, he mailed an information request
letter to Respondent. In said document, Respondent’s Exhibit
2, besides requesting copies of the company’s health and wel­
fare, life insurance, pension, and profit-sharing plans and copies
of the company’s holiday, vacation, and sick leave policies, he
requested that Respondent provide the Union with a listing “of
any other employee benefits provided by the Company.” While
he did recall that Respondent provided the Union with a list of
its employee benefits, shown a copy of Respondent’s Exhibit 3,
a document, which is entitled “Summary of Benefits” and in
which is listed numerous employee benefits including a “Driv­
ing/Safety Awards Program” and a bonus program of a “per­
centage of employees salary based on gross profit growth of
company,” Cantu could not recall if such was the listing of
employee benefits document provided. In this regard, Lisa Kay
testified that she responded to the Union’s August 27 informa­
tion request letter by sending to the Union a copy of an em­
ployee handbook and Respondent’s Exhibit 3. Asked how the
latter was sent to the Union, Kay replied, “I . . . think I just put
it in an envelope and sent it without a cover letter. So I don’t
know when I did that.”23
Examination of General Counsel’s Exhibit 11 discloses that
there is no mention of a driver safety bonus program or a bonus
program based on Respondent’s gross profit growth. Cantu
further testified that, during the negotiations, he was never
23 During cross-examination, she recalled she sent it to the Union
early during the bargaining.
314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
made aware of the existence of said bonus programs by Re­
spondent, and employee Templeton, who testified that he was a
member of the employee bargaining committee, that said com­
mittee met regularly with Stillwagen and Cantu, and that the
latter would inform the employee about the state of the negotia­
tions, denied ever discussing the existence the bonus programs
with the Union officials. Cantu testified that the management
rights clause of the parties’ collective-bargaining agreement24
means “basically whatever we did not see in the contract they
were not obligated to continue” but that, during bargaining,
there was no discussion that the management rights clause
would permit Respondent to discontinue existing benefits. Lisa
Kay conceded that, during the bargaining, there was never any
discussion about the driver safety bonus program or the bonus
program, based on Respondent’s gross profit growth, and that
Respondent eliminated the two bonus programs for bargaining
unit employees “because [they were not] part of the collective-
bargaining agreement.” Finally, there is no dispute that Re­
spondent failed to notify the Union of its decisions to eliminate
the driver safety bonus program and the holiday bonus program
for bargaining unit employees and to afford it an opportunity to
engage in bargaining over the matters prior to implementation.
The amended consolidated complaint alleges that Respon­
dent’s elimination of its driver safety and holiday bonus pro-
grams was violative of Section 8(a)(1) and (5) of the Act. As
set forth above, an employer violates said section of the Act by
unilaterally changing the mandatory subjects of bargaining
without first providing the bargaining unit employees’ collec­
tive-bargaining representative with notice and a meaningful
opportunity to bargain about the change. NLRB v. Katz , supra;
Bryant & Stratton Business Institute, supra; Associated Services
for the Blind, supra; Johnson-Bateman Co., supra. There is no
dispute that Respondent eliminated its driver safety and holiday
bonus programs for its bargaining unit drivers without notice to
the Union or affording it an opportunity to engage in meaning­
ful bargaining. It is well settled, and Respondent does not ar­
gue to the contrary, that wage incentive programs, such as its
driver safety bonus, are mandatory subjects of bargaining.
Johnson-Bateman Co., supra; Wellman Industries, 248 NLRB
325, 339 (1976). However, counsel for Respondent does con-
tend that the holiday bonus is not a term or condition of em­
ployment as it is not “a benefit that employees have regularly
received such that they would reasonably expect and rely on it
as part of their remuneration.” In support of the allegation of
the amended consolidated complaint, counsel for the General
Counsel relies upon two Board decisions—Sykel Enterprises ,
324 NLRB 1123, 1125 (1997), and Laredo Coca Cola Bottling
Co., 241 NLRB 167, 173–174 (1979), enfd. 613 F.2d 1338 (5th
Cir. 1980), cert. denied 449 U.S. 889 (1980). In Laredo Coca
Cola, the employer had paid a Christmas or yearend bonus,
which was based on the employer’s sales and subjective matters
such as an evaluation of each employee’s job performance and
24 Said provision reads as follows:
It is expressly agreed that all rights which are ordinarily vested in
and exercised by employers, except those which are clearly and ex­
pressly relinquished herein by the Company, shall continue to vest
exclusively and be exercised exclusively by the Company.
attitude, to employees for the previous two years and, in Sykel
Enterprises , the employer had paid a Christmas bonus, which
was based on the company’s yearly “performance” and the
employee’s attendance and job performance, to employees for
the four prior years.25 In finding unilateral discontinuances of
the bonus payments unlawful in both cases, the Board con­
cluded that the bonuses were mandatory subjects of bargaining,
noting that, rather than the amounts or the manner of calcula­
tion, “what is crucial in determining whether a bonus is part of
the wage structure rather than a gift is . . . whether, by course of
conduct or otherwise, Respondent has justified its employees’
expectations that they would receive the bonus as part of
wages.” Analysis of both cited cases discloses that the Board
apparently relied upon just one factor in concluding that the
employees’ expectation of payment in each was reasonable—
the successive years of past payment of the bonus.26 Arguing
in support of his client’s position, counsel for Respondent relies
upon Phelps Dodge Mining Co. v. NLRB, supra, in which the
Court of Appeals concluded that bonuses, or “appreciation
payments,” given to employees over a 5-year time period by
their employer did not constitute wages or a term and condition
of employment because the bonuses were paid at irregular time
intervals and varied as to amount and the manner in which they
were calculated. Id. at 1497.27 Counsel for Respondent argues
that the company’s holiday bonus, which had only been given
to employees for the previous 3 years, should be similarly con­
sidered as a gift as such is inextricably tied to its profitability,
which can never be certain from year to year. In Mr. Potty,
Inc., 310 NLRB 724, 729 (1993), the Board concluded that
regular sales bonus payments to employees constituted emu­
neration as “. . . the bonus was not linked to the financial condi­
tion of the [employer] and, most critically, the bonus was inex­
tricably linked to, and based upon, job performance.” Like-
wise, in Laredo Coca Cola, supra, and Sykel Enterprises , supra,
job performance was a factor relied upon by the employers in
determining the amount of the bonus payments. Herein, in
contrast to these latter two decisions, notwithstanding that they
had received a holiday bonus for three consecutive years, as the
said bonus had nothing to do with each employee’s job per­
formance, as department managers had discretion to deny bo­
nus payment to employees under their supervision, and as pay­
ment of the bonus was entirely linked to the uncertain nature of
25 In Sykel Enterprises, the bonus payments were not the same for
each employee and also varied from year to year.
26 Clearly, regular giving of a gift, such as a Christmas ham or turkey
each year, does not become a part of an employer’s wage structure so
as to constitute a term or condition of employment. Benchmark Indus­
tries, 270 NLRB 22 (1984).
In Nello Pistoresi & Son, 203 NLRB 905 (1973), enf. denied 500
F.2d 399 (9th Cir. 1974), the Board found that payment of a Christmas
bonus, the amounts of which were subjectively determined and not the
same for each employee, 2 years in succession was sufficient to make
the benefit a term and condition of employment. The Court of Appeals
reversed, concluding that the history was too short to find the bonus
constituted wages and that the amounts were too indefinite.
27 In its underlying decision, the Board obliquely concluded that the
appreciation payments “. . . constituted significant economic benefits to
eligible employees based on the employment-related factors of wages
and hours worked.” Id. at 985.
WAXIE SANITARY SUPPLY 315
Respondent’s profitability for the year, I do not believe that its
bargaining unit employees could have a reasonable, annual
expectation of receiving the bonus so as to constitute an antici­
pated remuneration. Accordingly, as the holiday bonus pro-
gram did not constitute wages or other terms and conditions of
employment, Respondent was under no obligation to have
given notice to the Union prior to eliminating it for bargaining
unit employees, and I shall recommend dismissing paragraph
9(c) of the amended consolidated complaint.
In support of his contention that Respondent’s elimination of
its 4 year old driver safety bonus program for bargaining unit
employees was violative of Section 8(a)(1) and (5) of the Act,
counsel for the General Counsel relies upon Mr. Potty, Inc.,
supra, which involved an employer’s unilateral elimination of a
sales bonus for bargaining unit employees. In determining that
the employer’s unilateral conduct was unlawful, the Board
found certain facts about the bonus program, each of which is
present in the instant matter, to be of significance. Thus, in Mr.
Potty, Inc., as herein, bonus payments were awarded to eligible
bargaining unit drivers on a consistent basis (with each pay-
check), the bonus payments were in uniform amounts, the bo­
nus payments were linked to the wage rates of each eligible
bargaining unit employee and not to Respondent’s financial
condition, and the amount of each eligible bargaining unit em­
ployee’s bonus was inextricably linked to, and based upon, his
job performance—lack of chargeable accidents. Id. at 729.
In defense of the allegation, counsel for Respondent argues
that “. . . the parties’ conduct together with the express lan­
guage of [the management rights article] of the collective-
bargaining agreement indicate the parties intention to waive
[any employee benefit] not specifically agreed to” during bar-
gaining. I find no merit to this defense. At the outset, the
Board has long recognized that the burden of proof is on the
party asserting the existence of waiver of a statutory negotiating
right as to a mandatory subject of bargaining—in this case,
Respondent. TCI of New York, 301 NLRB 822, 824 (1991);
East Kentucky Paving Corp., 293 NLRB 1132, 1135 (1989).
Further, while not to be lightly done, a waiver of such a right
may be inferred from extrinsic evidence of contract negotia­
tions but only if the matter at issue has been fully discussed and
consciously explored during negotiations and the labor organi­
zation has consciously yielded or clearly and unmistakably
waived its interest in the matter. AK Steel Corp., 324 NLRB
173, 181 (1997); Ohio Power Co., 317 NLRB 135, 136 (1995);
KIRO, Inc., 317 NLRB 1325, 1328 (1995). Moreover, waiver
may be manifested by the written terms of a collective-
bargaining agreement (Armour and Co., 280 NLRB 824, 828
(1986)), and, in such a manner, “a union may waive a mem­
ber’s statutorily protected rights . . . .” Metropolitan Edison
Co. v. NLRB, 460 U.S. 693 (1983). However, when, as herein,
such a right is involved, the Supreme Court “. . . will not infer
from a general contractual provision that the parties intended to
waive a statutorily protected right unless the undertaking is
`explicitly stated.’ More succinctly, the waiver must be clear
and unmistakable.” 460 U.S. at 708. In evaluating whether
language of a management rights clause, such as herein in­
volved, constitutes a clear and unmistakable waiver, the Board
has held that it will examine the precise wording of the relevant
contractual provision and that “management-right clauses
[which] are couched in general terms and [which] make no
reference to any particular subject area will not be construed as
waivers of statutory bargaining rights.” Bozeman Deaconess
Hospital, 322 NLRB 1107, 1108 (1997); KIRO, Inc., 317
NLRB 1325, 1327 (1995); Dubuque Packing Co., 303 NLRB
386, 397 (1991); Johnson-Bateman Co., supra. Finally, the
critical issue in deciding if management rights clause language
constitutes a waiver “is not . . . whether [a statutory] right might
reasonably be inferred from the management-rights clause; it is
whether that interpretation is supported by ‘clear and unmistak­
able’ language.” Elliott Turbomachinery Co., 320 NLRB 141
(1995). Owens-Brockway Plastic Products, 311 NLRB 519,
525 (1993); Universal Security Instruments , 250 NLRB 661,
662 (1980).
Adhering to these principles, there is no clear record evi­
dence that, either prior to or during the 16 negotiating sessions
between Respondent and the Union, the latter’s representatives
were made aware of the existence of Respondent’s driver safety
bonus program or that the issue was ever discussed during the
bargaining sessions between the parties. Thus, there is no cer­
tain record evidence that Union Agents Cantu and Stillwagen
ever saw a copy of Respondent’s Exhibit 3 prior to the bargain­
ing,28 and Cantu was uncontroverted that, during the bargain­
ing, Respondent never made him aware of the existence of the
driver safety bonus program. Employee Templeton was like-
wise uncontroverted that the bargaining unit employees never
informed either Union official of the benefit. Further, and most
significantly, Lisa Kay admitted that the bonus was never dis­
cussed during the bargaining. In these circumstances, I believe
that Respondent has failed to meet its burden of proof and that
there is no record evidence mandating the conclusion that, dur­
ing the bargaining, the Union consciously yielded or clearly
and unmistakably waived its interest in bargaining regarding
the matter of Respondent’s driver safety bonus program. With
regard to the management rights article of the parties’ collec­
tive-bargaining agreement, close scrutiny reveals that, at best, it
is a “generally-worded” contractual provision, which abstrusely
retains for Respondent “all rights which are ordinarily vested in
and exercised by employers .. . .” I do not believe that the
asserted “right” to eliminate bargaining unit employees’ bene­
fits, such as the driver safety bonus program, is necessarily
contemplated by a broad reference to “all rights which are ordi­
narily vested in and exercised by employers;” the provision is
clearly vague and, as such, insufficient to meet the standard of a
“clear and unmistakable waiver.” Accordingly, I do not believe
that the contractual management rights article privileged Re­
spondent to eliminate its driver safety awards program for bar-
gaining unit drivers. High-Tech Cable Corp., 309 NLRB 3, 4
(1992); Johnson-Bateman Co., supra; Kansas Education Assn.,
275 NLRB 638, 639 (1985). Based upon the foregoing, I be-
28 Cantu could not recall ever seeing R. Exh. 3, and Kay’s testimony
that, without enclosing a cover letter, she mailed the document to the
Union is, in my view, insufficient evidence to warrant an inference that
Stillwagen and Cantu were ever made aware of the existence of the
driver safety bonus and clearly and consciously declined to bargain
over the benefit.
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lieve that Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally eliminating the driver safety bonus program
for bargaining unit drivers without notifying the Union and
affording it a meaningful opportunity to bargain. Mr. Potty
Inc., supra.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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. The following employees of Respondent constitute a unit
appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
All drivers, warehousemen, technicians and installers em­
ployed at its San Diego, California facility; excluding all other
employees, office employees, clerical employees, guards, and
supervisors as defined in the Act.
4. By delaying the execution of the memorialized version of
its collective-bargaining agreement with the Union from Au-
gust 14 to September 16, 1998 because of a pending
decertification petition before the Board, Respondent engaged
in acts and conduct violative of Section 8(a)(1) and (5) of the
Act.5 By unilaterally discontinuing its driver safety bonus pro-
gram, a mandatory subject of bargaining, for its bargaining unit
drivers, without first providing notice to the Union or affording
it an opportunity to engage in meaningful bargaining over the
matter, Respondent engaged in acts and conduct violative of
Section 8(a)(1) and (5) of the Act.
6. The unfair labor practices described above are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
7. Unless specifically found, Respondent engaged in no other
unfair labor practices.
THE REMEDY
Having found that Respondent has engaged in serious unfair
labor practices, I shall recommend that it be ordered to cease
and desist from said unlawful acts and conduct and to take cer­
tain affirmative acts designed to effectuate the policies of the
Act. With regard to its driver safety bonus program, I shall
recommend that Respondent be ordered to reinstitute said pro-
gram for bargaining unit employees and maintain it in effect
until any modification is negotiated with the Union or an im­
passe in bargaining is reached. I shall also recommend that
Respondent be ordered to reimburse each of its bargaining unit
drivers for any wages lost, with interest, as a result of its unlaw­
ful elimination of the driver safety bonus program for bargain­
ing unit drivers, with interest calculated in the manner set forth
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Finally, Respondent must post the attached notice to inform
employees of their rights and the outcome of these matters.
[Recommended Order omitted from publication.]