Bancroft-Whitney Co., Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1974

214 N.L.R.B. 57 (N.L.R.B. 1974)

BANCROFT -WHITNEY CO ., INC. 57
Bancroft-Whitney Co., Inc. and Bay Area Typographi-
cal Union No. 21, International Typographical
Union, AFL-CIO. Case 20-CA-8821
October 11, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On April 12, 1974, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(5) and (1) by its ac-
tion in withholding the 1973 wage dividend from bar-
gaining unit employees. We do not agree with this
conclusion.'
For 12 years before 1973, Respondent had given
its hourly paid employees a bonus, called a wage div-
idend, in December of each year. In May 1972, the
Union was certified to represent a unit of about 60
employees in the editorial department and negotia-
tions for a contract began about the end of May. At
a bargaining session on November 3, Respondent ex-
pressed its desire to pay the 1972 bonus to all its
employees, including the members of the bargaining
unit. The Union acquiesced in the payment.
On May 29, 1973, after more than 30 bargaining
sessions, the parties executed a contract, effective to
January 27, 1974. The contract, 58 pages long, con-
tained a management rights clause, section 45, which
reads as follows: "Employer retains any and all
rights and prerogatives of management it enjoyed
prior to the execution of this contract except as spe-
cifically and expressly limited or modified by the
provisions of this contract or guaranteed by Federal,
State or Local Law."
A zipper clause, section 46(a), reads "The parties
'However , we adopt the Administrative Law Judge's finding that
Respondent 's action was not discriminatorily motivated and that Respon-
dent therefore did not violate Sec. 8(a)(3) of the Act. We also agree with the
Administrative Law Judge that we should not defer to arbitration herein
under the Collyer doctrine inasmuch as the issue was not pleaded or litigat-
ed at the hearing.
hereto agree that they have fully bargained with re-
spect to wages, hours and other terms and conditions
of employment and have settled these for the term of
this Agreement in accordance with the term hereof."
And Section 17, agreed to in the last few days of
negotiation, states: "All wages and other benefits to
be received are contained in this agreement."
On November 19, 1973, Respondent announced to
its employees that the wage dividend would be paid
on December 4, 1973, to all employees except those
represented by the Union "whose pay and benefits
are provided for in the collective bargaining agree-
ment executed on May 29, 1973."
On November 30, Respondent explained to the ed-
itorial department employees that they were not eli-
gible for the bonus because their contract did not
provide for it. The bonus was paid to all employees,
except those in the bargaining unit, on December 4.
This discontinuance of the bonus payment to the
unit employees without bargaining would be viola-
tive of Section 8(a)(5) unless, in the circumstances
described above, the Union is deemed to have
waived its right to require such bargaining. Contrary
to the Administrative Law Judge, we find such a
waiver. In determining the existence of a waiver in
cases such as this where the parties have engaged in
the collective-bargaining process and have executed
a bargaining agreement, the Board looks to a variety
of factors, including the evidence of contract negoti-
ations, the precise wording of the relevant contractu-
al provisions, and the completeness of the bargaining
agreement.'
The contract negotiations in this case consumed a
year, in which more than 30 bargaining sessions were
held. The Union participated in these negotiations
with full knowledge of the fact that the employees
had been receiving an annual wage dividend; when
the matter of the 1972 payment arose, the matter of
paying an annual dividend was brought directly and
openly to the Union's attention. Yet, during the long
negotiations, the Union never asked for bargaining
over the wage dividend or that any provision be
made expressly therefor in the contract. Instead, it
agreed to a contract which specifies the wages and
other terms and working conditions of the employees
and then adds that they have fully bargained with
respect to these matters and that "All wages and
other benefits to be received are contained in this
agreement." All these circumstances, including the
full and extensive negotiating, the detailed complete-
ness of their resulting contract, and the specificity of
the particularly relevant contractual provisions, dem-
onstrate to us that the Union has clearly waived any
2 Radioear Corporation, 199 NLRB 1161 (1972); Valley Ford Sales, 211
NLRB 834 (1974).
214 NLRB No. 12
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to bargain about the payment of an annual
wage dividend during the contract's duration.' It fol-
lows, therefore, that the Respondent has not violated
Section 8(a)(5) of the Act as alleged. Accordingly, we
shall dismiss the complaint in its entirety.
ORDER
facts are plain and conclusive against waiver. To find
a waiver here makes it impossible to bargain in good
faith, and thereby destroys the purpose the statute
was enacted to accomplish.
Thus, for the reasons expressed by the Administra-
tive Law Judge, I would find that Respondent's deni-
al of the bonus to those represented by the Union
violated Section 8(a)(5) and for the reasons expressed
above I would also find that the denial violated Sec-
tion 8(a)(3) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint here-
in be, and it hereby is, dismissed in its entirety.
MEMBER JENKINS, dissenting:
Respondent for 12 years before 1973 had.distribut-
ed a formula-computed bonus to its employees. Re-
spondent and the Union signed their first agreement
in May 1973. During the bargaining for this agree-
ment, after the Union objected to the management
rights clause as possibly giving Respondent the right
unilaterally to affect existing benefits through com-
panywide policy, Respondent's representatives as-
sured the Union that "if there was any Company-
wide policy, that did not apply to the bargaining
unit." Thereafter, at the end of 1973, the Respondent
paid the usual bonus, but unilaterally denied it to
employees represented by the Union, relying on the
"zipper" clause, that "the parties agree that they have
fully bargained-terms and conditions of. employ-
ment and have settled these-in accordance with the
terms" of the contract.
In my dissent in Radioear Corporation, 199 NLRB
1161, I pointed out how the majority there used the
Collyer 4 principle of deferral of unfair labor practic-
es to arbitration as a means of reversing our long-
standing rule, approved by the courts, that a waiver
of the right to bargain about loss of an existing term
or condition of employment must be clear, specific,
and unequivocal, and may not be implied from a
general "zipper," "management rights," or similar
catchall clause. The majority here extends further its
acceptance of general or ambiguous language in the
contract as such a waiver so as to negate clear assur-
ance by management representatives to the contrary.
To find a waiver in these circumstances, in the face
of Respondent's clear assurance to the contrary, ren-
ders the bargaining meaningless. The issue had been
raised, considered, and resolved in the bargaining, to
the result the opposite of that reached by my col-
leagues. In such case, there is no room to interpret an
ambiguous clause as justifying an inference of waiv-
er; instead, no inference is permissible, because the
3 A contrary conclusion is not warranted by the fact that , at the time the
management rights clause was agreed to, Respondent in effect stated that
there was no companywide policy that did not apply to the bargaining unit.
Even if this is read as an assurance against future changes which would
affect the bargaining unit, such assurance was obviously not meant to sur-
vive such changes in existing policies as were made by the contract itself.
And that is precisely what we are finding was done by the contract in the
matter of the annual wage dividend insofar as the bargaining unit is con-
cerned.
4 Collyer Insulated Wire, 192 NLRB 837 (1971).
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based
upon a charge filed on December 12, 1973, by Bay Area
Typographical Union No. 21, International Typographical
Union, AFL-CIO, hereinafter referred to as the Union, the
complaint herein was issued on January 25, 1974. The
complaint alleges that Bancroft-Whitney Co., Inc., herein-
after referred to as the Respondent or Company, violated
Section 8(a)(5), (3), and (I) of the Act by announcing on
November 19, 1973, that it would not pay its annual wage
dividends to employees represented by the Union and by
"withholding" said wage dividends from said employees on
December 4, 1973, without prior bargaining with the
Union with respect to said action. Respondent, by its an-
swer, denies that its conduct violated the Act as alleged.
Also by its answer , Respondent raises certain affirmative
defenses which are essentially that at no time has the
Union requested the Respondent to bargain with it with
respect to its aforesaid action and that according to the
provisions of the contract between them it was not obligat-
ed to pay the aforesaid wage dividends to said employees.
Pursuant to notice, a hearing was held in San Francisco,
California, on February 19, 1974, before me. Appearances
were entered on behalf of all the parties. Briefs were re-
ceived from the General Counsel and Respondent on
March 25, 1974, and March 22, 1974, respectively. Upon
the entire record 1 in this proceeding and my observation
of the witnesses as they testified, I make the following:
t By motion received March 22, 1974, Respondent proposed five correc-
tions in the transcript of the proceeding. The first four proposed corrections
are deemed appropriate; the fifth correction proposed was apparently, by
inadvertence , not complete and therefore the proposed correction has been
made as amended by me.
BANCROFT-WHITNEY CO., INC. 59
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has been,
a California corporation with its place of business in San
Francisco , California , where it is engaged in the publica-
tion of law books and related items. During the past calen-
dar year Respondent , in the course and conduct of its busi-
ness operations , received gross revenue in excess of
$500,000 , and purchased and received goods and materials
valued in excess of $50 ,000 directly from suppliers located
outside the State of California.
As it is admitted by the Respondent , it is, and at all
times material herein has been, an employer engaged in
commerce and in an operation affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent, the Union is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
For the 12 years prior to 1973 Respondent distributed
annually (in December of each year ) bonuses which it calls
a wage dividend to its hourly paid employees (with certain
exceptions which are of no consequence in this proceed-
ing). In May 1972 the Union was certified to represent a
unit of approximately 60 employees employed in
Respondent 's editorial department . Negotiations for a con-
tract commenced about the end of May 1972 and after
more than 30 bargaining sessions , the Respondent and the
Union executed a collective -bargaining agreement on May
29, 1973, effective by its terms from May 27, 1972, to Janu-
ary 27, 1974.
At the bargaining session on July 13, 1972 , the parties
discussed the subject of "management rights." The agree-
ment which was ultimately signed contained in section 45
thereof a provision with respect to management rights.2 It
appears from the credited testimony of Donald Abrams,
who represented the Union, that he stated at that time
"that if the management rights clause was to be included in
the agreement , that any Company -wide policy, even
though it is not enumerated if it could be established to be
in effect , the Company would also apply to its bargaining
unit people ." J It further appears from his testimony that
Connors , counsel herein for Respondent , asked Thomas
Levernier , Respondent ' s director of personnel , " if there
was any Company-wide policy that did not apply to the
2 Said provision is as follows:
Section 45 Employer retains any and all rights and prerogatives of
management it enjoyed prior to the execution of this contract except as
specifically and expressly limited or modified by the provisions of this
contract or guaranteed by Federal , State or Local Law,
3 It is noted that Respondent moved to strike this testimony on the
ground, in effect, that it violated the parol evidence rule. Said motion was
denied.
bargaining unit" and that , when Levernier "answered in
the negative ," no more was said on the subject.
At the bargaining session held on November 3, 1972,
Respondent requested permission of the Union to pay the
annual bonus that year to everyone including members of
the bargaining unit. The Union acquiesced . It is undisput-
ed that this was the only occasion during the entire period
of bargaining that any mention was made of the annual
wage dividend . There is no reference in the agreement to
the wage dividend.
On November 19, 1972, the following memorandum was
circulated among Respondent 's employees:
November 19, 1973
To: Bancroft-Whitney employees
Re: Wage Dividend
I am pleased to announce that at a meeting of the
Bancroft-Whitney Executive Committee , held this
date, payment of the regular Wage Dividend was au-
thorized.
The Wage Dividend will be paid on December 4,
1973, to all employees of the Company except those
represented by the Bay Area Typographical Union,
Local 21, whose pay and benefits are provided for in
the collective bargaining agreement executed on May
29, 1973. That agreement states that the parties fully
bargained with respect to wages, hours , and other
terms and,conditions of employment, and settled these
for the term of the agreement.
On November 30 the following memorandum was dis-
tributed to the editorial employees:
November 30, 1973
To: Editorial Services Employees of Bancroft-Whit-
ney
Subject: Wage Dividend
The only reason you are not eligible to participate in
this year's wage dividend is because the Union negoti-
ated a contract that does not include it.
The Union urged you to accept the present contract.
Since the contract was agreed to we assume that a
majority of Union members must have voted to accept
it.
Both sides bargained long and hard over all issues be-
fore each side finally approved and signed the con-
tract. There was a great deal of time and effort spent
settling the wage issue . Not once during negotiations
was the wage dividend expressly referred to, but it was
Bancroft-Whitney's assumption that the Union con-
sidered loss of the wage dividend a trade-off for elimi-
nation of the merit increase system .' Bancroft-Whit-
ney bargained hard for retention of merit increases
° There is no evidence in the record to support the appropriateness of this
assumption.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which encourage and reward superior performance.
(Incidentally, the Union's proposal for a new contract
makes no reference to the wage dividend.)
Sincerely,
/s/ Tom
Thos. J. Levernier
Director of Personnel
On December 4, 1973, Respondent's employees, with the
exception of the employees in the bargaining unit , received
wage dividends. It appears that the same formula (to com-
pute the amount of the dividend) has been used for at least
a dozen years and that full-time employees received a cer-
tain percentage of their gross salaries and part-time em-
ployees received dividends of $15 to $25. During the week
in which the dividend was distributed there were 52 regular
full-time editorial employees employed by Respondent.
Respondent admitted that it never requested the Union
to bargain with it with respect to its decision not to pay the
1973 Christmas wage dividend to employees represented
by the Union. It appears that the Union saw the November
19, 1973, memorandum shortly after it was issued, but took
no action with respect to the decision announced therein
until it filed the charge herein on December 12, 1973.
RESOLUTION OF THE ISSUES
The General Counsel contends that the Respondent's
failure to pay the bargaining unit employees the annual
wage dividend in December 1973 constituted an unlawful
unilateral action on the part of the Respondent, that the
wage dividend was part of the wages which the bargaining
unit employees could reasonably have continued to expect
to receive, and that the failure to bargain with the Union
with respect to its decision to discontinue the wage divi-
dend for said employees violated Section 8(a)(5) and (I) of
the Act. On the other hand Respondent argues that by the
terms of the collective-bargaining agreement unit employ-
ees are not entitled to wage dividends. It relies principally
on section 17 and section 46(a) of the agreement. Section
17 contains the following language: "All wages and other
benefits to be received are contained in this agreement." 5
Section 46(a) of the agreement is titled "zipper" clause and
provides as follows:
The parties hereto agree that they have fully bargained
with respect to wages, hours and other terms and con-
ditions of employment and have settled these for the
term of this Agreement in accordance with the terms
hereof.
NLRB 1258, 1265 (1965); Belden's Supermarket, Inc.,
d/b/a Food Giants of Texas, 179 NLRB 816, 819 (1969);
Progress Bulletin Publishing Company d/b/a Pomona Pro-
gress Bulletin, 182 NLRB 904, 907 (1970); and Simpson Lee
Paper Company, 186 NLRB 781, 783 (1970).
In effect, Respondent, relying upon the section 17 and
section 46(a) of the collective-bargaining agreement, argues
that the Union waived the annual bonus or wage dividend
and that the parol evidence rule precludes the General
Counsel from offering any evidence to vary or modify the
contract. The Respondent, in support of its contention that
the parol evidence rule should be invoked, cites a number
of Board decisions, particularly Seattle Bakers Bureau, Inc.,
101 NLRB 1344. Said decisions cited by Respondent do
contain a statement that the Board will not admit parol
evidence to determine the intent of the parties where the
contractual language is clear and unambiguous. The cited
cases, however, are representation cases in which the ques-
tion was raised as to whether a contract bar existed and
there was an attempt to prove by oral testimony the inval-
idity of a union-security clause.which on its face was valid.
It does not appear that the cited decisions are controlling
with respect to the applicability of the parol evidence rule
in this proceeding in which it is necessary to determine the
bargaining relationship between the Respondent and the
Union. It is noted that the court in Communications Work-
ers, of America v. Pacific Northwest Bell Telephone Co., 337
F.2d 455, 459 (C.A. 9, 1964), stated that the application of
a parol evidence rule "did seem peculiarly inappropriate in
the area of collective bargaining." While the facts in said
case are not analogous to the facts and issues before me, it
appears that the principle has been followed by the Board
for in the cases where there have been "wrap-up" or "zip-
per" clauses similar to the clauses relied upon by Respon-
dent, the Board has not considered the issue of whether or
not a parol evidence rule was applicable.
It is stated in The Beacon Journal Publishing Company,
164 NLRB 734, 738 (1966):6
In the second type of situation, the Board has refused
to find a bargaining waiver by the union, and there-
fore an assent to the employer's right to unilateral ac-
tion, unless the contract provision in question express-
ly or by necessary implication confers such a right.12
Accordingly, the Board will not infer a union waiver
of its bargaining right as to a particular subject not
mentioned in the contract merely because a broadly
worded "zipper" provision limits the employees' terms
and conditions of employment to those set forth in the
It is well established by Board decisions that an
employer's discontinuance of a bonus which had been
granted over a period of years without first bargaining
about the matter with the employees' statutory representa-
tive constitutes unlawful unilateral action violative of Sec-
tion 8 (a)(5) and (1) of the Act. Stark Ceramics, Inc., 155
5 It appears that this section of the agreement was agreed to in the last few
days of negotiation.
bit is noted that the finding of a violation of Sec. 8 (a)(5) and ( I) in the
cited case was upheld by the court of appeals upon the reasoning set forth in
the Board's decision in The Beacon Journal Publishing Co. v. N.L.R.B., 401
F.2d 366, 368 (C. A. 6, 1968 ), but that it remanded to the Board the issue of
whether or not restitution was a proper remedial order for the failure to pay
the bonus as formerly computed . The court considered the issue on remand
in 173 NLRB 1187 (1968 ) and concluded that a denial of a reimbursement
order would serve to penalize the unit employees and reward the Respon-
dent for its unlawful unilateral act. While it is noted that the Board's Sup-
plemental Order requiring reimbursement was denied enforcement by the
circuit court in 417 F.2d 1060 (C.A. 6, 1969), 1 am bound by the Board's
decision.
BANCROFT-WHITNEY CO., INC. 61
contract, but will consider the intent of the parties as would be continued for all employees including those in
shown by them in their negotiations.13
12 General Motors Corp., 149 NLRB 396, 399-400; Smith Cabinet
Manufacturing Company, Inc., 147 NLRB 1506; New York Mirror, 151
NLRB 834, 839-840.
13 New York Mirror, supra, at 837, 840; International Union of Elec-
trical, Radio and Machine Workers, AFL-CIO v. General Electric Co.,
332 F.2d 485, 489 (C.A. 2).
It is further noted that it was stated in Rockwell-Standard
Corporation, 166 NLRB 124, 132 (1967):
Even when a "waiver" is expressed in a contract in
such broad, sweeping terms as is the "Waiver" in the
present case, it must appear "from an evaluation of
the . . . negotiations that the [particular] matter was
`fully discussed' or `consciously explored' and the
union `consciously yielded' or clearly and unmistak-
ably waived its interest in the matter." (Fn. omitted.)
Also, it is stated in Century Electric Motor Co., 180 NLRB
1051, 1055 (1970):
A waiver "is not to be readily inferred and it should
be established by proof that the subject matter was
consciously explored and that a party has `clearly and
unmistakably waived its interest in the matter' and has
`consciously yielded' its rights."
While the language of the two sections of the collective-
bargaining agreement upon which the Respondent relies
cannot be said to be ambiguous, they do not constitute an
express waiver of wage dividends. It appears that a waiver
cannot be inferred from the language of limitation con-
tained in the sections of the agreement upon which Re-
spondent relies. "Wrap-up" or "zipper" provisions indicat-
ing the contract includes the complete agreement of the
parties "have repeatedly been held ineffectual to constitute
a waiver of statutory right or to avoid a statutory bargain-
ing obligation." Century Electric Motor Company, 180
NLRB 1051, 1056 (1970).
It is found that during the bargaining negotiations the
parties did not consciously explore the particular matter of
wage dividends, that the only mention during the negotia-
tions of wage dividends was in November 1972 when the
Respondent sought the acquiescence of the Union to the
payment of wage dividends to all the employees including
the bargaining unit employees. Furthermore , it is noted that
at the bargaining session on July 13, 1972, when the negoti-
ating parties discussed the subject of a management right
clause (which was included in the contract), the Union
sought assurance that, if the management rights clause
were to be included, any companywide policy, even though
"not enumerated," would also apply to the bargaining unit
people, and Respondent's response was that there was no
companywide policy that did not apply to the bargaining
unit. This assurance and the absence of any mention dur-
ing the negotiations of the matter of wage dividends sup-
port an inference that the Union could have reasonably
assumed that a companywide policy of a wage dividend
the bargaining unit.?
It is concluded, therefore, that the record will not sup-
port a finding that the Union waived the payment of wage
dividends on behalf of the employees it represents.
Respondent raises as an additional defense that the
Union failed to request bargaining about the decision not
to pay unit employees wage dividends after it had learned
of the decision. The Respondent could not reasonably have
regarded the Union's silence as acquiescence, Century Elec-
tric Motor Co., 180 NLRB 1051, 1057 (1970); Wisconsin
Aluminum Foundry Co., 173 NLRB 1160, 1161 (1968). As a
further defense, Respondent asserts a willingness to bar-
gain with the Union over its failure to pay the 1973 wage
dividends. Its offer to enter into such discussions made
after it has taken unilateral action comes too late. Wisconsin
Aluminum Foundry Co., supra.
Therefore, it is concluded that by its failure to pay the
1973 wage dividends to the bargaining unit employees
without notifying the Union of its decision and affording it
an opportunity to bargain with respect thereto, the Re-
spondent violated Section 8(a)r5) and (1) of the Act.
It is alleged, and the General Counsel argues, that Re-
spondent violated Section 8(a)(3) of the Act by its action in
paying the dividends to the nonunit employees and failing
to pay the bargaining unit employees. In support of this
contention General Counsel cites Wisconsin Aluminum
Foundry Co., supra. It is noted that in said cited case there
was a finding of a discriminatory motivation. It does not
appear from all of the circumstances in the instant case
that a finding of discriminatory motivation can be made.
At the most it appears that Respondent seized upon sec-
tions 17 and 46(a) of the collective-bargaining agreement
as what it thought was a legal basis for not paying the wage
dividends to the bargaining unit employees. While the bar-
gaining unit employees were subjected to disparate treat-
ment, there is no evidence of animosity and no more than
a suspicion that it was intended to discourage membership
in the Union. Consequently, it is concluded that the Gener-
al Counsel has failed to prove, by a preponderance of the
evidence, that Respondent violated Section 8(a)(3) of the
Act as alleged in the complaint. In any event, a finding of
a violation of Section 8(a)(3) would not alter the remedy
recommended hereinbelow.
In its brief Respondent raises for the first time the con-
tention that the issues herein should be deferred to an arbi-
trator under the Collyer doctrine.' The appropriateness of a
deferral to arbitration was not pleaded, raised during the
course of the hearing, or litigated before me. Consequently,
the record evidence is insufficient for finding that a defer-
ral is warranted. Nedco Construction Corp., 206 NLRB 150
(1973); International Association of Bridge, Structural & Or-
namental Iron Workers Local Union No. 70, 206 NLRB 116
(1973).9
7 It appears that the union representatives were aware of the company-
wide policy of annual wage dividends.
8 Enunciated in Collyer Insulated Wire, 192 NLRB 837, 841-42 (1971).
9
Without passing upon the appropriateness of deferral to arbitration in
this proceeding , since the record is insufficient , attention is called to the
decision in Simpson Lee Paper Company, 186 NLRB 781, 783 (1970). which
would indicate that the issues herein are nonarbitrable.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The unfair labor practice of the Respondent set forth in
section III, above, occurring in connection with its opera-
tions set forth in section I, above, has a close, intimate, and
substantial relation to trade, traffic, and commerce among
'the several States, and tends to lead to labor disputes bur-
dening and obstructing commerce and the free flow there-
of.
V. THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor prac-
tice found herein and take certain affirmative action, as
provided in the recommended Order below, designed to
effectuate the policies of the Act.
It having been found that the Respondent has engaged
in an unfair labor practice within the meaning of Section
8(a)(5) and (1) of the Act, it will be recommended that it
cease and desist therefrom and, upon request, bargain col-
lectively with the Union as the exclusive representative of
the employees in the bargaining unit of editorial employees
concerning the payment of wage dividends to said employs
ees.
Respondent's unfair labor practice consisted of its uni-
laterally withholding the 1973 wage dividend from the bar-
gaining unit employees. Since said wage dividend consti-
tutes wages enjoyed by the employees, the failure to pay
said wage dividend was a detriment suffered by said em-
ployees. It is the Board's customary policy to direct a re-
spondent to restore the status quo where a respondent has
taken unlawful unilateral action to the detriment of its em-
ployees.10 Accordingly, it will be recommended that the
10 Century Electric Motor Co., 180 NLRB 1051, 1059 (1970); The Beacon
Journal Publishing Company, 164 NLRB 734, 739 (1967). Also see In. 6.
Respondent make whole eligible employees in the bargain-
ing unit represented by the Union by paying them the 1973
wage dividend in accordance with the long existing formu-
la applied by Respondent. Further, in accordance with the
Board's normal practice, it will be recommended that the
backpay awards be paid with interest at 6 percent per an-
num to be computed in the manner set forth in Isis Plumb-
ing and Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and at all times material herein has
been, engaged in commerce and in an operation affecting
commerce within the meaning of Section 2(6) and (7) of
the Act:
2. The Union is, and at all- times material herein has
been, a labor organization within the meaning of Section
2(5) of'the Act representing an appropriate bargaining unit
of editorial employees of Respondent.
3. By unilaterally withholding the payment of 1973 wage
dividends from the eligible employees in the bargaining
unit represented by the Union the Respondent has engaged
in and is engaging in an'unfair labor practice within the
meaning of Section 8(a)(5) and (1) of the Act.
4. The General Counsel has failed to prove by a prepon-
derance of evidence that Respondent violated Section
8(a)(3) of the Act as alleged in the complaint.
[Recommended Order omitted from publication.]
Respondent , in its brief, argues that the Board may not require a payment
of the 1973 wage dividend, relying mainly upon H. K. Porter Company, Inc.
v. N.L.R.B., 397 U.S. 99 (1970). Said case involved the granting of a remedy
of a checkoff of union dues and is not applicable to the issue herein. The
remedy recommended herein is the continuation of a benefit to employees
and not the imposition of a new provision in the agreement between the
parties. . .