Century Electric Motor Co.

National Labor Relations Board - Board DecisionsFeb 3, 1970

180 N.L.R.B. 1051 (N.L.R.B. 1970)

CENTURY ELECTRIC MOTOR CO. Century Electric Motor Company and International Union of Electrical , Radio and Machine Workers, AFL-CIO-CLC and its Local 768. Case 8-CA-5287 February 3, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On August 12, 1969, Trial Examiner Stanley N. Ohlbaum issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Charging Party filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner' s Decision , the exceptions and cross-exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. We find, as did the Trial Examiner, that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally discontinuing the 1968 Christmas bonus and by thereafter refusing to negotiate concerning the matter. We also find, as did the Trial Examiner, that in order to effectuate the policies of the Act, a remedial order requiring Respondent, inter alia , to reimburse the employees for the unpaid Christmas bonus is appropriate in the particular circumstances of this case.' As the Trial Examiner found , the Respondent , although it told its employees at a meeting that it was not paying the 1968 bonus because sales had been disappointing , did not advance this or any other business consideration during contract negotiations, or at the hearing , as a reason for the discontinuance of the bonus . On the one and only occasion when it discussed the matter with the Union it stated that it made no claim of financial inability, but felt simply that it was management ' s prerogative to pay or not to pay the bonus In maintaining this position throughout, Respondent repudiated the principle of collective bargaining on this issue Further, it is clear that, unlike New Orleans Board of Trade, 152 NLRB 1258, no special circumstances were advanced or proved which show that the Union could not successfully have resisted the nonpayment of the bonus had it been afforded the opportunity to bargain the matter Cf Leeds and Northrup Co. v. N L R B. 391 F.2d 874, 880. (C A. 3) For these reasons, as well as for the other reasons fully articulated in the Trial Examiner's Decision, we find that the equitable considerations , on balance, ORDER 1051 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Century Electric Motor Company, Gettysburg, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.' tilt in favor of issuing the reimbursement remedy we provide for herein in order to undo the unlawful effects of Respondent's action We do not read the opinion of the Sixth Circuit Court of Appeals in N L R B v Beacon Journal Publishing , 417 F 2d 1060 , Judgment issued October 28, 1969, as precluding such a remedy in the circumstances presented in this case 'Substitute "Judgment" for "Decree" wherever it occurs in fn 27 of the Trial Examiner 's Recommended Order TRIAL EXAMINER'S DECISION 1. PRELIMINARY STATEMENT; ISSUES STANLEY N. OHLBAUM, Trial Examiner: This proceeding under the National Labor Relations Act as amended (29 U.S.C. Sec 151 et seq.: "Act"), on complaint of the Board's Regional Director for Region 8 (Cleveland, Ohio), dated March 11, 1969, based upon a charge filed with him on January 6, 1969, by the above Union, was tried before me in Greenville, Ohio, on May 7, 1969 Involved are alleged violations of Section 8(a)(5) and (1) of the Act through Respondent's unilateral discontinuance of a Christmas bonus to employees and failure and refusal to bargain collectively with regard thereto. All parties participated throughout and were afforded full opportunity to present evidence and contentions, examine and cross-examine witnesses, propose findings and conclusions, and file briefs. Subsequent to the trial, an extension of time for that purpose having been allowed on application made, briefs were received from counsel for all parties. Having carefully considered these, as well as the entire record,' and upon my observations of the testimonial demeanor of the witnesses, I make the following. FINDINGS AND CONCLUSIONS II. PARTIES; JURISDICTION At all material times, Century Electric Motor Company, Respondent herein, has been and is an Ohio corporation engaged in manufacture and sale of electric motors, with principal office in St. Louis, Missouri, and a plant in Gettysburg, Ohio (the facility involved in this proceeding). In the course and conduct of Respondent's operation of its said Gettysburg plant, Respondent annually ships therefrom directly in interstate commerce to places outside of Ohio goods valued in excess of $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; the above Union has been and is a labor organization as defined by Section 2(5) of the Act; and that assertion of jurisdiction in this proceeding is proper 'Hearing transcript hereby corrected as to obvious and typographical errors listed on attached Appendix "A " [Omitted from publication ] 180 NLRB No. 174 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. ALLEGED UNFAIR LABOR PRACTICES A. Facts as Found The facts are substantially undisputed, leaving essentially a question of law. Respondent's predecessor, The Tait Manufacturing Company, commenced operations in 1957 at the Gettysburg, Ohio plant subsequently acquired by Respondent and here involved. Commencing that year (1957) and annually thereafter until and including 1966 a period of 10 years - - Tait paid its factory employees at that plant a Christmas bonus. The amount of the bonus to each employee was dependent upon his seniority or length of service, viz. $10 to each factory employee on the first Christmas of his employment and an additional $5 for each additional year of employment2 On or about June 1, 1967, Tait sold its Gettysburg plant to Century, Respondent herein. There is no contention here that Century is not a bonafide successor of Tait, nor that it is integrated with or subject to the industrial relations control or policy of the latter.' On or about June 10, 1966, through a Board-conducted secret ballot election, the production and maintenance workers at Tait's Gettysburg plant had selected and designated, and the Board on or about August 3, 1966, accordingly certified, the Union herein as their exclusive collective-bargaining representative. On or about November 8, 1966, Tait and the Union entered into a 2-year collective agreement governing this bargaining unit, to expire November 8, 1968. Containing no mention of a Christmas bonus, this agreement contained the following "wrap-up" or "zipper" provision (article XXII, section 3). The parties acknowledged that during the negotiations which resulted in this agreement each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter not removed by law from the area of collective bargaining, and that the understandings and agreements arrived at by the parties after the exercise of the right and opportunity are set forth in this Agreement. Therefore, the Company and the Union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated, to bargain collectively with respect to any subject or matter referred to, or covered in this Agreement, or with respect to any subject or matter not specifically referred to or covered in this Agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement. Tait nevertheless paid its employees their usual Christmas bonus in 1966, in accordance with the described seniority formula. As already indicated, in June, 1967, Tait sold its Gettysburg plant to Respondent Century. On September 30, 1967, Tait entered into an agreement with Century wherein Tait assigned all of its "interest and obligations arising from," and Century "hereby assumes all such interest and obligations arising from," Tait's November 8, 1966 --- November 8, 1968, collective agreement with the 'These figures are approximate , since the $10 paid in 1957 was net and the amounts paid in subsequent years were gross 'A membership by a Tait executive on the Century board of directors is only for financial security purposes to assure liquidation of Century's long-term indebtedness to Tait on the full purchase price by Century of Tait' s Gettysburg plant assets Union , "with the understanding that the seniority of each employee will be carried over and continuous under the seniority provisions of said collective bargaining agreement ." The Union on October 5, 1967, endorsed its consent upon this instrument of "assignment." It is undisputed that at all times since June 1, 1967, Respondent (Century) has recognized the Union as collective-bargaining representative of the Gettysburg plant employees. It is conceded that on or about December 24, 1967, its first Christmas of operation of the Gettysburg plant, Respondent (Century) paid to the factory employees there a Christmas bonus utilizing the very same formula prevailing there in preceding years under its predecessor Tait, crediting employees ' years of employment with Tait in their bonus computations . The 1967 Christmas bonus checks were distributed to employees , at a Christmas party, by Respondent 's Vice President and General Manager Bolton , who "said he hoped there would be more of them next year , and bigger." On or about September 23, 1968, by a Board -conducted secret election resulting from the filing of a decertification petition (Board Case 8-RD-439), a majority of Respondent's Gettysburg plant factory employees comprising the aforedescribed unit, redesignated and selected, and the Board accordingly on or about September 30, 1968, recertified the Union as the exclusive collective- bargaining representative of those employees. On or about November 22, 1968,° Respondent and the Union entered into a 3-year collective agreement , expiring November 22, 1971 , covering said employees and providing various employment betterments. This agreement is still in force and effect. It likewise contains no mention of a Christmas bonus. It is stipulated by the parties that the subject of Christmas bonuses was not mentioned during their negotiations resulting in the 1968-71 contract ; nor had it been mentioned in the previous contract negotiations with Tait nor discussed with the Union at any time. The 1968-71 contract contains a "wrap-up" or "zipper" provision (article XXIV, section 3) identical to the one in the 1966-68 contract , quoted supra On November 27, 1968, ' Respondent assembled and announced to its Gettysburg employees -- without prior notice to or negotiation with the Union that it was discontinuing its Christmas bonus, at least for that year., Respondent ' s Vice President and General Manager Bolton 'The Agreement , reciting it was "entered into on November 22, 1968," was executed on December 10, 1968 Agreement on substantially all issues appears to have been reached by November 22, 1968, as memorialized in the parties ' signed memorandum of that date, following seven previous bargaining sessions. '1 find this occurred on November 27, 1968, as testified by Respondent's witnesses Bolton and Dunaway , and corroborated by Bolton's log as well as Respondent ' s plant visitors' register record , rather than around December 13 as testified by General Counsel 's witness Smith 'Respondent 's Vice President and General Manager Bolton testified that the decision not to pay a Christmas bonus in 1968 was arrived at by him in unison with Company President Pillsbury and Gettysburg Plant Manager Dunaway, at the Gettysburg plant on November 27, 1968, shortly before it was communicated to the employees as stated above According to Bolton, he had been informed early in 1968 by Lou Wozar, chairman of Respondent ' s board of directors (Wozar was then also president and general manager of Respondent 's predecessor Tait, to whom Respondent Century had incurred a long -term indebtedness, as stated in fn. 3, supra), of a decision by that Board eliminating a Christmas bonus until there was "a profit " There is no contention that any such decision was ever communicated to the Union , and it is conceded that there was never any bargaining on the subject. CENTURY ELECTRIC MOTOR CO. testified that in addressing the assembled employees on this occasion he told them that "the year had been a poor year from a sales standpoint and the income had been such that it was necessary for us to forgo paying a Christmas bonus for the year We hoped to be able to reestablish the habit in following years, and they were advised that if they would hold up the quality and their end in the productivity, the profits would progress to such a degree that we should be able to pay a bonus in following years." (Emphasis supplied )' Company President Pillsbury also addressed the assembled employees, according to Bolton, "exactly the same in effect." There is no contention that the Union had at any time prior to this assemblage and announcement to Respondent's employees on November 27, 1968, been informed by Respondent of a discontinuance of or intention to discontinue the Christmas bonus for 1968, nor that the Union had been invited to express its views or given any opportunity to bargain thereon; nor is there any contention that any profit-loss or economic data were at any time submitted to the Union or bargained about Upon being apprised by Respondent's Gettysburg plant shop committee of Respondent's announcement cancelling the Christmas bonus for 1968, the Union wrote a letter of protest to Respondent 8 In response, a meeting was held between Respondent and the Union on January 7, 1969,' resulting shortly thereafter in a formal expression by Respondent to the Union, disavowing any obligation to pay a Christmas bonus or to discuss with the Union its discontinuance or suspension 10 The Union had meanwhile, on January 6, 1969, filed the charges resulting in the complaint and proceeding here 'In view of the corroborative testimony of Respondent ' s witness Dunaway (its plant manager ) and the failure of General Counsel ' s witness Smith (the then Union Steward) to so say in his pretrial written statement to the Board , I do not credit Smith ' s testimony that on this occasion Bolton additionally remarked that "you all received a nice raise in the contract " 'The Union' s letter (dated December 18, 1968 ), after informing Respondent that the Union had learned that "without notifying to, or bargaining with the [Union]" Respondent had "notified employees at the Gettysburg plant that their Christmas bonus would be discontinued," points out that the Union felt that "this conduct constitutes a refusal to bargain and demand[s] that immediate negotiations commence concerning this matter of the Christmas bonus ," and indicating that the Union would be available to discuss the matter " at your earliest possible date" requests that such a meeting be arranged 'At the January 7, 1969 meeting , Respondent ' s corporate principal's Director of Industrial Relations Muenster asked Union Representative Berton why he had not "mention[ed ] this [Christmas bonus during the 1968 contract ] negotiation ," to which Berton replied that even after Respondent had taken over the plant from Tait it had been "a past practice to pay this bonus in the past and never in negotiation before had we talked of Christmas bonuses , that we more or less felt it was automatic payment and I would have felt like a heel if I had asked them about payment of a Christmas bonus " On cross-examination, Muenster conceded that Berton stated "he considered the payment of the bonus to be automatic " Respondent ' s Personnel Secretary Brown, who was present and took shorthand notes of this meeting, called as Respondent ' s witness, testified that , in objecting to the Company's unilateral discontinuance of the Christmas bonus in 1968, Union Representative Berton among other things told Muenster that " If you can show us that financially it can ' t be paid we will accept that Mr Muenster asked Mr Berton on what grounds do we pay Nowhere do I see where it is to be paid Mr Muenster said I am not interested in paying the bonus It was made known and I don't know what else we could do Mr Berton said if you're not in a position to do anything I understand Mr Muenster said he wouldn ' t say this But told Mr Berton that this was his interpretation I represent the Company Mr Berton said I think it should be paid Mr Muenster asked what makes you think this Mr Berton said its been a past history Maybe you could say we will give so B Rationale 1053 The issues raised are thus whether, under the described circumstances, Respondent violated Section 8(a)(5) or (1) of the Act by (1) its unilateral discontinuance of the unit employees' Christmas bonus in 1968, and (2) its failure and refusal to bargain with the Union concerning that bonus. At the hearing, at which the 1968 discontinuance or nonpayment of the bonus was conceded, Respondent through its counsel stated that "There is no question that the Company's position is that it is not obligated to bargain about this " 1. Employer's general bargaining obligation concerning changes in employment terms and conditions In consideration of these issues , our point of departure is the well-recognized principle that an employer violates Section 8(a)(5) if, absent waiver by the union, he changes wages or other terms or conditions of employment without affording to the union an appropriate opportunity to bargain concerning the change Fibreboard Paper Products Corp v N L R B , 379 U.S 203 , 209-210, N L R B v. Katz , 369 U S 736, 743. Here there was no, and it is not claimed there was any, bargaining impasse such as to justify employer action (cf industrial Union of Marine & Shipbuilding Workers v N L R B , 320 F 2d 615, 621 (C A. 3), cert denied 375 U. S. 984 ); the plain fact is that there was no negotiation since Respondent announced and imposed the change without discussion." It is clear that the mere omission of a collective agreement to mention a mandatory bargaining subject does not free the parties from their statutory obligation to bargain thereon so as to permit a party to act unilaterally on the subject . Many subjects of prime significance in the employment relationship are not spelled out in collective agreements . For example , the fact that a collective agreement is silent on the subject of providing heat in a factory would not warrant the employer in discontinuing heat and maintaining freezing temperatures in the much for so much service If you can't financially that's something else Maybe you could change the procedure Mr Muenster said there was adequate time or opportunity to mention it during negotiations Mr Berton said believe me I would have brought it up if we had known it was being discontinued Mr Berton asked if he though it would be right to have put it in the union ' s proposal Mr Muenster replied , well let 's say it wouldn ' t have been wrong " Respondent ' s own notes thus plainly establish that the January 7 , 1969, meeting was not a negotiation concerning the 1968 Christmas bonus , but in effect no more than a Company refusal to pay it or to negotiate concerning it These notes further indicate that Respondent was not resting its refusal to pay the 1968 Christmas bonus on financial inability "Respondent's letter (dated January 15, 1969 ), from Respondent's corporate parent Century Electric Company ' s Director of Industrial Relations Muenster , states to the Union that " Your demand to bargain letter (December 18, 1968 ) came as a complete surprise to the Company " Pointing out that the subject of Christmas bonus had not been brought up by the Union during the 1968-contract negotiations , Respondent ' s letter indicates that a meeting was "nevertheless" held with the Union and employee shop representatives on January 7, 1969, following receipt of the Union's December 18 letter Respondent 's letter concludes with the statement that the Christmas bonus "was a gratuity that might vary from year to year Historically , it has been a management decision, apparently accepted by the Union " The fact is , that as of December , 1968, the Christmas bonus, tied to the same seniority formula, had not varied for 11 years, under Respondent and its predecessor "As shown above , fn 9, Respondent ' s January 7, post-Christmas meeting with the Union was from Respondent 's point of view negotiative neither in purpose , actuality, or effect 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wintertime . "Collective bargaining is a continuous process Among other things, it involves day-to-day adjustments in the contract and other working rules, resolution of new problems not covered by existing agreements , and the protection of employee rights already secured by contract ." Conley v. Gibson , 355 U. S. 41, 46 (emphasis supplied ), see also Fibreboard , supra at 211. "[T]he duty to bargain unquestionably extends beyond the period of contract negotiations and applies to labor - management relations during the term of an agreement " N.L R B. v. Acme Industrial Co., 385 U.S. 432, 436 Thus, execution of a collective agreement is not a bar to entry and enforcement of a bargaining order. 2. Employer ' s obligation to bargain concerning discontinuance , suspension , or alteration of Christmas bonus system We come, then , to the central question of Respondent's concededly unilateral discontinuance of the Christmas bonus in 1968 - a bonus, based on seniority , which the employees at the Gettysburg plant had enjoyed for 11 consecutive years." As to this, it has long since been pointed out in language which should be clear to all that where such payments whether they be denominated Christmas bonuses, gifts , or otherwise" have been made "regularly over a substantial period of time" and "related in amount and supplementary to [employees'] wages or earnings," this is "sufficient to justify the expectation on the part of the employees that , absent a change in circumstances , they would continue to receive a year-end bonus upon which they might rely as part of their 'wages.' "Niles- Bement-Pond Company , 97 NLRB 165, 166, enfd . 199 F.2d 713 (C.A . 2). Accordingly, a discontinuation or change in such a payment is "a subject as to which an employer was bound to bargain collectively on request ," even in the absence in the collective agreement of "any clause dealing with this subject matter " N.L . R B. v Niles-Bement -Pond Company, supra at 714, see also Singer Mfg. Co v. N.L.R B. I19 F. 2d 131 (C.A. 7), cert denied 313 U.S . 595. Failure to do so constitutes a violation of Section 8(a)(5) and (1) of the Act. Id In Niles- Bement-Pond , supra, the employer unilaterally reduced its usual Christmas bonus to offset or reflect the cost of a newly instituted retirement fund, it had paid such a bonus for 12 years except for i year when the employees were on strike, or for II years. The employer defended its unilateral modification of the bonus upon the ground that it was a "gift ," payment of which was purely optional on its part and not subject to a bargaining obligation under the Act , particularly since not encompassed by the subsisting collective agreement. The Board and court rejected these contentions. Here Respondent, in the face also of an Il -year established Christmas bonus, presents the same contentions. It is difficult to see how employees who for II years have received a substantial cash Christmas bonus based upon seniority , could regard the bonus as other than an attractive emolument and "term[s ] and condition[s] of employment" (Act, Sec 8 [d]) regularly forthcoming and inhering or probably inhering in their jobs.' ° "The realities of the industrial world establish . . . that a year-end bonus which has become part of the employees' wage expectancy, though it may be paid at Christmas and therefore carry with it the Christmas spirit of gift giving, amounts fundamentally to deferred compensation for services performed during the preceding year. We are convinced , therefore , that the policy of the Act to encourage collective bargaining in the interest of industrial peace is best served by requiring an employer to negotiate on the subject matter of such a bonus. The Christmas spirit, as we conceive it, does not stop short of the bargaining table, for bargaining in good faith is in itself a continuing effort to achieve good will between an employer and his employees." Niles-Bement-Pond Company, supra at 167. Similarly, in N.L.R B v. Exchange Parts Company, 339 F.2d 829, and N L R.B. v. Citizens Hotel Company, 326 F.2d 501, the Fifth Circuit Court of Appeals likewise enforced orders of the Board involving findings of violation of Section 8(a)(5) and (1) of the Act based upon employers' unilateral discontinuances of Christmas bonuses. Exchange Parts involved a 10-year prior history of such bonus payments, there, as here concededly, "At no time during the bargaining sessions following the certification in July was the subject of Christmas bonuses raised by either party" (339 F.2d at 831). Citizens Hotel involved a bonus payment practice for over 14 years; there, as here, "At no time did the Union representative bring up or even so much as mention the Christmas bonus" (326 F.2d at 505); there, as allegedly here, the bonus discontinuance followed a directors' meeting and decision, but there, unlike here16 - rendering the situation here a fortiori "the evidence is both uncontradicted and vivid in showing regular, continuous losses in large cumulative amounts" (326 F 2d at 504).16 "As shown above , I year ( 1967) under Respondent and 10 preceding years (1957-66) under Respondent 's predecessor Tait, with payments at all times - including the year 1967 under Respondent -- based on seniority, which upon Respondent 's succession to the plant consisted of a cumulation of each employee's service with Tait as well as Respondent at Gettysburg "" `[A bonus] is not a gift or gratuity , but a sum paid for services, or upon a consideration in addition to or in excess of that which would ordinarily be given ' " Kenicott v The Supervisors , 83 U S 452, 471 ""Section 9 (a) of the Act refers not only to 'rates of pay ' but also to 'wages or other conditions of employment .' It is well established that wages' must be construed to include emoluments of value accruing to employees out of their employment relationship in addition or supplementary to actual 'rates of pay ' Inland Steel Company, 77 NLRB I, enfd 170 F 2d 247 (C A. 7), cert denied 326 U S 960, W W Cross & Co, Inc v N L R B, 174 F 2d 875 (C A 1) " Niles-Bement-Pond Company, supra at 166, fn 4 Such emoluments are reportable and taxable wages or income for social security and income tax purposes Id at 167 "No evidence has ever been adduced here as to financial inability to pay the bonus . Indeed, Respondent declined to accept the Union's express invitation to do so, see fn 9, supra "N L R B v. Wonder State Manufacturing Company, 344 F 2d 210 (C.A 8), relied on by Respondent , is neither apposite nor to the contrary of the cases cited above The court there found the evidence insufficient to support a Board finding that Christmas bonuses were a part of the employer's wage structure , since such payments were not initiated until 5 years after the employer embarked upon its operations (at bar, it will be recalled , Christmas bonuses were paid from the very start of the Gettysburg operation until their unilateral discontinuance or suspension by Respondent 12 years later ), bonus payments in the 6 years thereafter until the year involved in the case , were highly intermittent , not uniform in amount or basis, and dependent upon financial returns, and established serious impending losses preceded the withholding of the bonus in the year in question The court nevertheless , citing Niles- Bement-Pond (C A 2), supra, and Citizens Hotel, (C A 5), supra, as well as other cases in those circuits and in the Sixth and Eighth Circuits , expressly recognized that "if the gifts or bonuses are so tied to the remuneration which employees received for their work that they were in fact a part of it, they are in reality wages and within the statute [requiring bargaining ] This is a question of fact and, if the Board's finding to that effect is supported by substantial evidence, the finding must be accepted on review ." (344 F 2d at 213 ) CENTURY ELECTRIC MOTOR CO. 1055 3. Effect of Respondent's 1967 successorship to Gettysburg plant upon its obligation to continue predecessor's Christmas bonus system As has been indicated, the payment of a Christmas bonus to unit employees at the Gettysburg plant was initiated by Respondent's predecessor Tait upon the inception of its business there in 1957 and, with the amount of bonus determined upon a seniority basis, continued thereafter for each of the 10 years until Respondent (Century) acquired that plant in 1967. In 1967, the first year of Respondent's operation of the Gettysburg plant, Respondent, after executing the industrial relations assumption agreement which has been described, continued the very same Christmas bonus practice of its predecessor, cumulating seniority of the unit employees since the 1957 inception of that plant. Respondent nevertheless argues that there is here no established practice of Christmas bonus payments since prior to the unilateral discontinuance or suspension of those payments by Respondent in 1968 it had made such payments for only 1 year, namely 1967. I reject this contention for a number of reasons. To begin with, the plant, bargaining unit, and operation here are the very same involved during the prior ownership of Respondent's predecessor to which Respondent succeeded. Secondly, on its succession to this plant and unit, Respondent entered into a written agreement with its predecessor, ratified by the Union, in which Respondent expressly "assumes all . . . interest and obligations arising from said [existing 1966-68] collective bargaining agreement [between its predecessor Tait and the Union], with the understanding that the seniority of each employee will be carried over and continuous under the seniority provisions of said collective bargaining agreement." Third, after Respondent succeeded to the Gettysburg plant operation in 1967, it adopted and continued without change the Christmas bonus payment policy of its predecessor, cumulating the unit employees' combined seniority under its predecessor as well as itself. Fourth, applicable legal principles and controlling precedents indicate Respondent's contention to be unsound. Since an employer may under certain circumstances be broadly obligated to comport himself consistently with employer-employee relationships inherited from a predecessor employer (cf., e.g., John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, affg. 313 F.2d 52 (C.A. 2), involving survival of duty to arbitrate; Monroe Sander Corporation v. Livingston, 377 F.2d 6 (C.A. 2), cert. denied 389 U.S. 831; Wackenhut Corp. v. United Plant Guard Workers, 332 F.2d 954 (C.A. 9); United States Gypsum Co. v. United Steelworkers, 384 F.2d 38 (C.A. 5), cert. denied 389 U.S. 1042; United Steelworkers v. Reliance Universal Inc.. 335 F.2d 891 (C.A. 3), to say nothing of being required to remedy the industrial relations derelictions of his predecessor (cf., e.g., Perma Vinyl Corp., 164 NLRB No. 119, enfd. sub nom . United States Pipe and Foundry Company v. N.L.R.B., 398 F.2d 544 (C.A. 5), it would seem no less appropriate to hold a successor employer to the lesser and narrower bargaining obligation here acquired, particularly in the presence of an express written assumption agreement. Even in the absence of such express agreement, "It is well settled that, where there is substantial continuity in the identity of the employing enterprise, the purchasing employer is bound to recognize and bargain with the incumbent union." Northwest Galvanizing Co., 168 NLRB No. 6. See also Overnite Transportation Company, Inc , 157 NLRB 1185, enfd . 372 F.2d 765 (C.A. 4), cert. denied 389 U.S. 838. At bar, as in Perma Vinyl , supra, and in Glendora Plumbing, 172 NLRB No. 197, Respondent continued to operate the same factory and facilities as its predecessor , at the same location and with substantially the same labor force, in an enterprise having continuity in all aspects save technical corporate ownership. In General Telephone Company of Florida, 144 NLRB 311, enfd. in relevant part 337 F.2d 452 (C.A. 5), a change in the employer of the unit was held not to affect the successor employer 's obligation to bargain concerning discontinuance of a Christmas bonus which had been paid for many years by the predecessor employer." 4. Respondent's "waiver" contention Respondent further contends that the Union waived the right to object to unilateral discontinuance of the Christmas bonus by its actions, including the Union's acquiescence for many years in the employer's payment of the bonus without discussing or bargaining about it, the Union failure to seek its inclusion in the collective agreement , and the Union's execution of the December 1968 collective agreement at a time when it knew that Respondent had announced its intention not to pay the bonus that year. The last of these contentions will be more elaborately discussed infra, under "6. Respondent's 'equitable estoppel' contention," since there is no claim here of any express yielding or surrender on that subject by the Union at any time. It is an established principle that a waiver, or voluntary relinquishment, of a right must be in " 'clear and unmistakable' language . Tide Water Associated Oil Company, 85 NLRB 1096; N.L.R.B. v. Item Company, 220 F.2d 956, 958-959, C.A. 5th, cert. denied, 350 U.S. 836, rehearing denied 350 U.S. 905. Silence in the bargaining agreement on such an issue does not meet this test. This Court said in N.L.R.B v. J H. Allison & Co., 165 F.2d 766, 768, C.A. 6th, cert. denied, 335 U.S. 814, 'Nor do we see logical justification in the view that in entering into a collective agreement for a new year, even though the contract was silent upon a controverted matter, the union should be held to have waived any rights secured under the Act, including its right to have a say-so as to so-called merit increases.' . . . We are of the opinion that the execution of the 1960 bargaining agreement,which was silent on this controversial question did not constitute a relinquishment of the Union's statutory right to the wage information which it now seeks [citations ]." Timken Roller Bearing Company v. N.L.R B., 325 F.2d 746, 751 (C.A. 6), cert. denied 376 U.S. 971. 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." Tucker Steel Corp , 134 NLRB 323, 332, and cases there cited; accord C & C Plywood Corporation, 148 NLRB 414, 416-417, "Respondent has presented a letter dated November 29, 1967, from its predecessor (Tait) stating that the Christmas bonus payment system was "discretionary and can be revoked or modified by the management at any time" and that "The management is the sole judge in settling matters pertaining to the plan " There is no claun that this was ever shown to or discussed with the Union , by either Respondent or its predecessor Obligations toward third parties are unchanged by self -serving statements of this sort. It is unnecessary here to consider whether such statements by a vendor to a purchaser of a business constitute actionable misrepresentation 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,enforcement denied 351 F. 2d 224 (C.A. 9), reversed' 385 U.S. 421 Far from "proof that the subject matter wasconsciously explored," it is here stipulated by the parties that they did not so much as mention the subject of Christmas bonus in any of their talks prior to its unilateral discontinuance by Respondent. Moreover, the record clearly establishes that the Union consistently protested that action on Respondent's part, maintaining it to have been in violation of Respondent's obligation to bargain collectively; and, furthermore, that the Union's affirmative attempts to redress Respondent's unilateral acts and omissions in that regard have met with no success. In this posture of the case, characterized by the Union's ineffectual protests against Respondent's unilateral withholding of the 1968 Christmas bonus and its refusal even to discuss the subject, the Union can hardly with justification be insisted to have "waived" these matters. In General Telephone Company of Florida v. N L.R.B., 144 NLRB 311, enfd. as modified 337 F.2d 452 (C.A. 5), a similar contention was rejected. Likewise in Beacon Journal Publishing Company, 173 NLRB No. 181, on remand from the Sixth Circuit Court of Appeals, the Board held that unions had not relinquished their rights to bargain over Christmas bonuses because of their acquiescence in voluntary payment thereof by the employer or because they had accepted contracts lacking a bonus provision. Respondent further points to its alleged unilateral modification of its Good Friday policy in April 1968 (merely as to advance reporting of an intended absence on that day, which remained as an excused day), as further justification for its unilateral elimination of its 1968 Christmas bonus. But the failure to bargain on one subject in April does not annul the obligation to bargain about another in December. I accordingly reject Respondent's waiver contentions. 5. Effect of "wrap-up" or "zipper" provision As has been shown, the parties' 1968 collective agreement contains a "wrap-up" or "zipper" provision, which Respondent here claims negates its obligation to bargain during the contract period. It has been demonstrated that such a provision does not eliminate the necessity for compliance with the statutory bargaining obligation; perhaps particularly, as here, with regard to matters not covered by the agreement, as indicated by our earlier example of furnishing heat in the plant during the winter. Further, if, as in the case of regularly established bonuses which are a part of the wage structure, the parties mutually elect to continue such a practice without contractual formalization,1e this does not mean that for this reason it may be unilaterally discontinued at any time - such as in the case of heat in the factory without the necessity for bargaining thereon. "It is noted that the subject of Christmas bonus is likewise unmentioned in any previous collective agreement here . As the Board stated in General Telephone Company of Florida, 144 NLRB 311, 315, enfd. as modified 337 F 2d 452 (C.A 5), "The Respondent 's longstanding custom of paying the Christmas checks 'unilaterally ' gave it no reason to expect that the Union would not object if it discontinued the checks, for the Union had no apparent reason to disturb an agreeable payment The most that can be assumed from past history is that the Union had no desire to obtain a larger Christmas check for the employees it represented This is as reasonably attributable to a preference for obtaining wage increases in other ways , as it is to a relinquishment of any rights with respect to the matter of Christmas checks " It is difficult to see how the absence from the collective agreement of a matter regarding which , as shown, Respondent was obligated to bargain , absolves Respondent of such obligation merely because of inclusion of a "wrap- up" clause indicating the contract includes the complete agreement of the parties. Notwithstanding the identical provision in the earlier collective agreement, there is here a history of 11 years of Christmas bonus payments by Respondent and its predecessor. "Wrap-up" or "zipper" provisons comparable to the one here have repeatedly been held ineffectual to constitute a waiver of statutory right or to avoid a statutory bargaining obligation . See, e.g., General Electric Co. v. N L. R.B., 414 F . 2d 918, 71 LRRM 2562, 2567 (C.A. 4); IUE, etc. v. General Electric Co., 332 F.2d 485, 489 (C.A. 2); Unit Drop Forge Division , Eaton Yale & Towne Inc, 171 NLRB No. 73, 68 LRRM 1129, 1130-31; Rockwell-Standard Corp., 166 NLRB No. 23. 6. Respondent's "equitable estoppel" contention Respondent further urges that since the Union had shortly prior to final execution of the 1968 collective agreement learned of Respondent's announcement to its employees that it would not pay a 1968 Christmas bonus, through failure to insist on inclusion of an express bonus provision in that agreement or at least to raise objections to its omission from that agreement" before it signed it the Union is now "equitably estopped" from asserting that Respondent's actions here complained of were in violation of the Act. For various reasons I cannot agree. To begin with, cases already cited establish that even total omission during contract negotiations to mention such a bonus does not constitute a waiver in relation thereto Second, the Union may justifiably not have desired to jeopardize execution of the contract it had already won from Respondent by interjecting such a possible "stumbling block" new matter (never before mentioned in a contract, but nevertheless consistently adhered to) at the eleventh hour, which could have interminably delayed the collective agreement-in-chief. Third, if Respondent had wished to exclude this subject from the ambit of negotiations, it could itself very easily have insisted on inclusion of such a provision in the contract, instead of itself remaining silent thereon throughout the negotiations but thereafter, the contract being signed, raising its current claim of "equitable estoppel." Fourth, Respondent's contention ignores the fact that express contract provision on this subject (i.e., negotiating regarding bonus discontinuance) might not have required payment (or nonpayment) of such a bonus over the duration of the contract period, but merely that Respondent bargain on any proposed bonus discontinuance which is the same point at issue here. Finally, the fact, that in its discussion with the Union on this subject in January 1969, Respondent never raised the contention of "equitable estoppel" is an indication that Respondent did not so contend or itself waived such a contention, and that its being raised at this stage has the earmarks of a legalistic makeweight argument. I am unable to discern any persuasive basis for concluding that the Union (as well, it would seem, in Respondent's estimation, as General Counsel, a prosecutory official charged with safeguarding the public interest in observance of the Act's policies and "It will be recalled that the subject of Christmas bonus was likewise unmentioned in the prior collective agreement CENTURY ELECTRIC MOTOR CO. 1057 requirements) is "equitably estopped," as Respondent now insists, from pursuing this proceeding. Basic elements of such an estoppel are action in reliance upon a promise, to the detriment of the promisee. Cf. Lebold v. Inland Steel Co., 125 F.2d 369, 375 (C.A. 7); Alleghanv College v. National C. Co. Bank, 246 N.Y 369, 159 N E. 173; Siegel v. Spear & Co., 234 N.Y. 479, 138 N.E. 414; DeCicco v. Schweizer, 221 N.Y. 431, 117 N.E. 807; Freeman v. Freeman, 43 N.Y. 34, 3 Am. Rep. 657; Anson, Contracts Secs. 126, 126a, 212 (Corbin 5th Am. ed.1930); Corbin, Contracts Sees. 193-205 (I vol. ed. 1952); I Williston, Contracts Secs. 139-140, 116 (rev. ed 1936). Upon what promise of the Union did Respondent here rely to its detriment'? To begin with, the Union made no promise. Upon what, then, did Respondent rely to its legal harm'? On the Union's failure to insist upon including in the latest collective agreement an express Christmas bonus provision which had not theretofore been included in a collective agreement, nor then or ever before bargained about or even mentioned in any negotiations, but which had nevertheless consistently and without exception been paid for I I years previously'? And how was or is Respondent damaged thereby'? Is its damage that it now is called upon to do what it could have done last year, and what it refused to do when expressly invited to do by the Union'? Respondent has suffered no change of position due to any action on the Union's part. Respondent remains, as it always has been, under the obligation to bargain. Respondent cannot now be heard to insist that it would have offset the 1968 Christmas bonus by reducing some betterment or other provision in the collective agreement which it elected to sign that year without mentioning the subject of the Christmas bonus; Respondent was, of course, itself throughout its contract negotiations with the Union as its employees' certified collective-bargaining representative free to bring this matter up and negotiate about it at length. In General Telephone Company of Florida v. N.L.R B , 337 F.2d 452 (C.A. 5), in relevant part enfg. 144 NLRB 311, the court held that the Board properly concluded there was no acquiescence by the union through its failure previously to take up with the employer the matter of Christmas bonus discontinuance, since (as here) no discontinuance had occurred previous to the one in question in the case. "Under such circumstances, the Company could not reasonably regard the Union's inaction as acquiescence on the Union's part to any unilateral action which the Company might wish to take with reference to the Christmas checks. There was accordingly no conduct on the part of the Union, upon which the Company might rightfully rely, which would create an estoppel against the Union." Id at 454. In Beacon Journal Publishing Company, 164 NLRB No. 98, and 173 NLRB No. 181 (on remand from C.A. 6), the Board likewise rejected the contention that unions had relinquished their rights to bargain concerning Christmas bonuses by having acceded to voluntary payments thereof and by acceptance of contracts silent thereon . And in the still more recent case of General Electric Co. v. N.L.R.B., 414 F.2d 918, 71 LRRM 2562, 2567 (C.A. 4), the court likewise rejected such a contention notwithstanding execution of a contract not containing the provision in question. Under the circumstances, I find that Respondent has not sustained its burden of establishing by a fair preponderance of substantial credible evidence that the Union is here estopped as contended.S° 7. Postscript In connection with the foregoing analysis, I have not been unmindful that an employer may of course "make changes without the approval of the union as the bargaining agent. The union has no absolute veto power under the Act. . . . But there must be discussion prior to the time the change is initiated An employer must at least inform the union of its proposed actions under circumstances which afford a reasonable opportunity for counter arguments or proposals ." N L R.B . v Citizens Hotel Company , 326 F.2d 501, 505 (C.A. 5). [Emphasis supplied .] But "Here, where there is a refusal to bargain in good faith , it is even clearer that such a change, without prior consultation with the union and affecting the most basic of all terms of employment , wages, was an impermissible unilateral change constituting a failure to bargain.' N.L R.B. v. Citizens Hotel Company , 5 Cir., 1964, 326 F.2d 501, 505. . The company 's failure here to consult with the union before making the change converted what might otherwise have been a legal act into an illegal one." A . H Belo Corp . v N L R B., 411 F 2d 959, 71 LRRM 2437, 2446 (C.A. 5). It is accordingly found and concluded that Respondent has violated the Act in the respects charged and set forth in the complaint. Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. Century Electric Motor Company, Respondent herein , is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2. International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 768, Charging Party herein, is a labor organization within the "Tucker Steel Corp . 134 NLRB 323, heavily relied on by Respondent, is inapposite There the Board , while finding an unlawful refusal to bargain concerning discontinuance of a Christmas bonus, nevertheless found its discontinuance for a particular year not to be unlawful An all-important distinction between that case and this aside from the absence of a consistent payment basis history, pattern , and seniority formula calculation as here, as well as the employer's free-hand dealing with the bonus there over a long period of time is that in Tucker, unlike here , the Christmas bonus had figured as a specific subject in the parties' collective -agreement negotiations antedating its announced discontinuance, its discontinuance forming an expressly bargained quid pro quo for the granting of other betterments This vital distinquishing feature of Tucker was emphasized by the Board (and recognized by the court) in the later case of General Telephone Company of Florida, 144 NLRB 311, 314, enfd as modified 337 F.2d 452, 454 (C.A 5) The same distinction is present in Speidel Corporation, 120 NLRB 733, and sundry other cases relied on by Respondent involving situations where employer and union had in fact expressly bargained concerning bonuses before the employer took action affecting them The very recent case of Murphy Diesel Company, TXD 414-69 [179 NLRB No 271, (July 24, 1969; decided by Trial Examiner Donovan, who had also decided Tucker ), again presents the same distinctive feature, namely, discontinuance of the Christmas bonus played an overtly bargained and expressed role (including a specific letter of the employer to the Union ) in the parties' collective-agreement negotiations preceding its actual discontinuance (TXD) In the instant case, there is no indication that the right to continued expectation of the established Christmas bonus was at any time relinquished for a bargained equivalent or substitute . It is unnecessary here to express agreement or disagreement with the seeming intimation in Murphy (TXD) that a lengthy pattern of unopposed unilateral fringe benefit elimination justifies further unilateral fringe benefit elimination , since in the instant case, unlike Murphy . there is no "long history" (id ) of unopposed unilateral elimination of various fringe benefits. 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of Section 2(5) of the Act 3 Assertion of jurisdiction herein is proper. 4 On and at all times since September 23, 1968 (as well as prior thereto), the following was, has been and is a unit of Respondent's employees appropriate for collective bargaining purposes All production and maintenance employees, including group leaders, employed by Century Electric Motor Company at its plant in Gettysburg, Ohio, but excluding all office clerical employees, plant clerical employees, technical employees, watchmen, guards, professional employees, and supervisors as defined in the National Labor Relations Act as amended 5 On and at all times since September 23, 1968 (as well as prior thereto), the Charging Party (Union) herein was, has been, and is the duly designated, and since September 30, 1968, the Board-certified, exclusive collective-bargaining representative of Respondent's employees in the said unit described in Conclusion of Law 4, supra 6 By its action on or about November 27, 1968, unilaterally and without prior discussion with the Charging Party (Union) as the duly authorized and certified exclusive collective bargaining representative of Respondent's employees in the above unit appropriate for collective bargaining purposes, withdrawing, suspending, eliminating, or discontinuing payment of said employees' Christmas bonus for 1968, under the circumstances described and found in section III hereof, Respondent failed and refused to bargain collectively with said Union, thereby engaging in an unfair labor practice in violation of Section 8(a)(5) of the Act 7 By its said action described in Conclusion of Law 6, supra, and its nonpayment of said bonus under said circumstances, Respondent has interfered with, restrained and coerced, and is continuing to interfere with, restrain and coerce, its said employees, in violation of Section 8(a)(l) of the Act. 8. By its failure and refusal to bargain collectively with said Union at any time on or since November 27, 1968, concerning its unilateral action described in Conclusion of Law 6, supra, Respondent has failed and refused, and is continuing to fail and refuse, to bargain collectively with said Union, in violation of Section 8(a)(5) and (I) of the Act. 9 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 10 Respondent has failed to establish, in fact or in law, any defense to the violations of the Act alleged in the complaint THE REMEDY It remains to consider the remedy appropriate to these violations. Under a duty to bargain collectively with the Union as its employees' duly elected and certified collective-bargaining representative, Respondent instead without notice to the Union announced directly to the employees a unilateral discontinuance or suspension of its Christmas bonus. Thereafter, when the Union requested Respondent to bargain on this subject, Respondent refused to do so. The unit in question consists of only about 40 employees, and since the bonus in question is based upon a seniority system it is clear that none could have exceeded about $60, with many if not most probably substantially less. Respondent has at no time established financial inability or economic hardship, and has rejected the Union's express invitation to make such a showing. Under these circumstances, the key question affecting appropriate remedy is not whether Respondent should be required to bargain as to future Christmas bonuses in the event it contemplates not paying them it should be ordered so to bargain in view of its violations but whether in view of the facts shown it should now be required to pay the 1968 bonus, in accordance with the established seniority formula, without further ado. "Ideally," a remedy should accomplish neither more nor less than restoration of the status quo before the wrong In the real world, where time cannot be reversed, such an ideal is as yet unattainable There is accordingly left, in the situation presented with regard to the 1968 Christmas bonus, a choice between two less than "ideal" remedies, namely, bargaining or payment The precedents indicate that either is available as a remedy 21 Although it is true that a reimbursement order is always open to the theoretical argument that the employer might have prevailed upon the union to forego the omitted payment, this is suppositious and presupposes that the employer had comported himself legally by engaging in bargaining as required by law - not, as here, refused to do so, thereby through his affirmative violation and superadded refusal thereafter to bargain, created a situation where a rollback of time to the bargaining conditions of last Christmas is no longer possible Ex post facto discussion - perhaps particularly following litigation which one side has "lost" - is not the same as bargaining for the continuation of a seasonal plum Ex post facto discussion frequently takes on the air of a mere reiteration of positions "frozen" through the bitterness of litigation, resulting at best in grudging, parsimonious adjustment of what is regarded as an exacted and enforced tribute In distinction, collective bargaining traditionally involves a give-and-take process aimed toward mutually acceptable compromise itself auguring well for the successful surmounting of future economic challenges by management and labor in a continuing spirit of teamwork In the instant case, for example, money available to management last year may have been distributed as profits or, other wise expended; the employer would now anproach the "bargaining" table over an issue which he regards as "stale," in dogged pursuit of a point of view which he has sought to vindicate at monetary outlays already presumably sunk in litigation. There is a time and tide even for bargaining. One must presume that the Christmas spirit, unlike the weather, is warmer in December than in the following summer particularly when not exposed to litigational chill. All circumstances considered, is it realistic to expect the employer to bargain at the same level of dispositional motivation now as on last Christmas eve' If, as I believe, the answer is clearly no, it cannot be ignored that the situation is of Respondent's and not the Union's making Although "retroactive enforcement must always contain in it some element of hardship on the employer a failure to grant back pay imposes at least an equal hardship on the employees." Leeds & Northrup Company v N L R B, 391 F 2d 874, 880 (C A. 3). But "while it is true that a retroactive order might afford the employees a better position than the union's bargaining might have achieved, the Board can hardly be said to be effectuating policies beyond the purposes of the Act by resolving the doubt against the party who violated the Act." Id Accord N L R B v Remington Rand , Inc , 94 F 2d 862, 872 (C A. 2), cert denied 304 U.S. 576 The Supreme Court That a bargaining order is an available remedy is of course entirely CENTURY ELECTRIC MOTOR CO. has instructed that the effectuation of the policies of the Act which has been legislatively entrusted to the Board "charges the Board with the task of devising [effective] remedies ." N.L.R.B. v. Seven-Up Bottling Co ., 344 U.S. 344, 346. Accord N. L.R.B. v. Gissel Packing Co., 395 U.S. 575, 610. And we have been consistently prodded, with seemingly increasing judicial vigor , to provide effective remedies , perhaps in part so as to stem the tide of unneeded litigation redundant of long-settled principles. See, e .g., Fibreboard Corp. v. N.L.R .B., 379 U . S. 203, 215-217; N.L.R.B . v. Erie Resistor Corp., 373 U.S. 221, 236; Virginia Electric & Power Co . v. N.L.R. B., 319 U.S. 533, 539-540; Phelps Dodge Corp . v. N.L.R. B., 313 U.S. 177, 187-188, 193-194, 198. Relevant also to remedy here is the added circumstance that the issues presented are in no sense novel or of first, second , third , or such early-order impression. The principles governing those issues were clearly laid down, explicitly with regard to Christmas bonus discontinuances, no less than almost a generation ago (Niles-Bement-Pond, supra ).= 1 It is repugnant to the public policy declared in the Act , and frustrates its orderly administration as well as clogs overburdened judicial machinery , to lend encouragement to relitigation of issues long since reiteratedly settled . There comes a time when such issues should be retired from the arena of active litigious contest. Under these circumstances , effective and meaningful remedy is not only justified but required . Invited by the Union to bargain about the Christmas bonus, notwithstanding its unilaterally announced and unlawful suspension thereof, Respondent refused and persists in that refusal . At this stage and date , merely to require Respondent to "bargain " regarding last year ' s Christmas bonus , would not only be likely to result in an exercise in futility but would serve as a reward for the flouting of long-imbedded legal requirements ." I shall accordingly recommend , as judicially approved in N.L.R.B. v. Exchange Parts Company , infra , not merely bargaining about future ( i.e., 1969 and thereafter ) proposed changes in the bonus system but also payment of the unit employees ' regular 1968 Christmas bonus in accordance with the previously established formula continuously adhered to every Christmas since the plant's inception in 1957. Fealty to the legislatively declared public policy underlying the Act and due regard for realistic law enforcement administration would appear to demand no less in this case. "It is the Board ' s customary policy to direct a respondent to restore the status quo ante where respondent has taken unlawful unilateral action to the detriment of its employees ." Leeds & Northrup Co., 162 NLRB 987, 988 , enfd . 391 F.2d 874 , 879-880 (C.A. 3).24 Board orders requiring payment of unlawfully unilaterally discontinued or suspended Christmas bonuses have been enforced ; as, for example , in N.L.R . B. v. Exchange Parts Company, 339 F. 2d 829 , 831-832 (C.A. 5); and, more clear . That a payment order is also an available remedy, see N L.R B v. Exchange Parts Company, 339 F.2d 829, 831-833 (C A. 5), and other cases cited infra. "Indeed , even a cursory check discloses that the question dates back at least to 1940 in reported Board (and court ) annals readily publicly available . Cf Singer Manufacturing Company, 24 NLRB 444, 459, 469-470, enfd . as modified 119 F.2d 131 (C A. 7), cert. denied 313 U.S. 595. "it is of course also generally true that even good faith belief by a party that he is not required to bargain is no defense to a refusal to bargain. N L.R.B. v. Wooster Div of Borg-Warner Corp , 356 U.S. 342, 349; ILGWU Y. N L R B, 366 U.S. 731, 739; Old King Cole, Inc. v N.L R B, 260 F.2d 530, 532 (C.A. 6). 1059 recently, in Stark Ceramics v. N.L.R.B., 375 F.2d 202, 206-207 (C.A. 6); and thereafter, in American Fire Apparatus Co. v. N.L.R.B., 380 F.2d 1005 (C.A. 8); yet again , in the even more recent case of Beacon Publishing Company, 173 NLRB No. 181, the Board on remand from the Sixth Circuit Court of Appeals (401 F.2d 366) reaffirmed its earlier order (164 NLRB No. 98) directing payment of an unlawfully unilaterally reduced Christmas bonus. N.L.R.B. v. Central Illinois Public Service Co.. 324 F.2d 916 (C.A. 7), enforced a reimbursement order requiring the employer to make restitution for its unlawful unilateral discontinuance of natural gas purchase discounts to its employees." Under these circumstances , since , as reasoned by the Board on remand in Beacon Journal Publishing Company, 173 NLRB No. 181, 69 LRRM 1549, 1550, "denial of a reimbursement order would serve to penalize the unit employees and reward the Respondent for its unlawful unilateral act" as well as (in the instant case) for its continued outright refusal to bargain at all with the Union on this subject, I am in this case recommending an order requiring payment of the 1968 Christmas bonus as well as bargaining concerning any projected withholding of a future Christmas bonus. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby recommend that the National Labor Relations Board issue the following: ORDER Respondent Century Electric Motor Company, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Unilaterally discontinuing, abrogating, cancelling, suspending , modifying, or withholding payment in full or in part on, the Christmas bonus system which has continuously since 1957 been in effect involving Respondent's employees in the following described unit: All production and maintenance employees, including group leaders, employed by Century Electric Motor "Lest the policy be confused or underestimated , the requirement is independent of possible bad faith on the employer's part in unilaterally withdrawing the benefits . Cf. Fibreboard Corp. v. N L R B., 379 U.S. 203, 216, N L R B v K & H Specialties Co, Inc., 407 F 2d 820 (C.A 6); Leeds & Northrup Company v. N L.R B. 391 F 2d 874, 879-880 (C A. 3); American Fire Apparatus Co v N L R B., 380 F 2d 1005, 1006 (C.A 8), Overnite Transportation Company v. N L R B, 372 F.2d 765, 770 (C.A. 4), cert denied 389 U S 838; N L R B v Frontier Homes Corporation, 371 F.2d 974, 979-981 (C.A 8); N L.R B v. Exchange Parts Company, 339 F 2d 829, 832 (C A 5); N L.R B v Central Illinois Public Service Company, 324 F 2d 916, 918 (C A. 7) "Citizens Hotel Company (Hotel Texas). 138 NLRB 706, enfd. as modified 362 F.2d 501 (C A 5), is not to the contrary . That case involved "uncontradicted and vivid " inability to pay a bonus, with "regular, continuous losses in large cumulative amounts" lid at 504 ); the court there expressly acknowledged, "We recognize , of course , that there are circumstances in which , to effectuate the dominant policy of effective bargaining in good faith , a restitution order is permissible or required" (id at 508 ) Likewise in N.L R B v. Wonder State Manufacturing Company, 344 F 2d 210 (C A 8), also cited by Respondent , not only was there found to be no regularity in the Christmas bonus payments or in the basis of their calculation , but the proof established that in the year in question Respondent faced "serious losses" in consequence of which it " in any event would have omitted the Christmas bonus" for that year. Id at 213, fn. 5. in the instant case , as has been shown , no losses or financial inability have been shown; indeed , refusing to bargain at all on the subject of its unilateral discontinuance of the bonus, Respondent declined the Union's express invitation to make such a showing or claim 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company at its plant in Gettysburg, Ohio, but excluding all office clerical employees, plant clerical employees, technical employees, watchmen, guards, professional employees, and supervisors as defined in the National Labor Relations Act as amended. (b) Refusing or failing to bargain collectively in good faith with International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 768, as exclusive collective- bargaining representative of Respondent's employees in the unit described in paragraph 1(a) of this Order, with regard to or concerning the subjects, or any of them, referred to in said paragraph I(a) of this Order. (c) Taking any other unilateral action on or affecting said Christmas bonus or any other term or condition of employment without prior consultation and bargaining with said Union. (d) In any like or related manner interfering with any effort of said Union to bargain collectively on behalf of said unit employees, or interfering with, restraining, or coercing said unit employees in their rights and efforts to bargain collectively or to assert and enjoy their rights guaranteed under Section 7 of the National Labor Relations Act, as amended 2 Take the following affirmative action which will effectuate the policies of the Act: (a) Make whole each and every person employed in 1968 in the bargaining unit described in paragraph 1(a) of this Order for any loss which he or she may have suffered by reason of Respondent's unilateral cancellation, suspension , withholding, or failure to pay a 1968 Christmas bonus, by payment thereof to each such person forthwith in accordance with the Christmas bonus formula then and since in or about 1957 in effect, in the manner set forth in the "Remedy" section of the Trial Examiner's decision in this proceeding, together with interest thereon at the rate of 6 percent per annum" from December 25, 1968, to the date of payment in accordance with this Order. (b) Upon request, bargain collectively in good faith with International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 768, as the statutory representative of Respondent's employees in the above-described unit, concerning any proposed change in the Christmas bonus system or payments in effect for said employees since 1957, and concerning any other term or condition of said employees' employment (c) Post in Respondent's factory at Gettysburg, Ohio, copies of the attached Notice to Employees marked "Appendix B "27 Copies of said notice, on forms provided by the Board's Regional Director for Region 8, after being signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof and maintained by it for a period of 60 days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said Notices are not altered, defaced, or covered by any other material "Isis Plumbing & Heating Co. 138 NLRB 716, The Scam Instrument Corporation. 163 NLRB No 39, enfd 394 F 2d 884 (C A 7), cert denied 393 U S 980, American Fire Apparatus Co . 160 NLRB 1318, enfd 380 F 2d 1005 (C A 8), Stark Ceramics, Inc , 155 NLRB 1258, enfd 375 F 2d 202 (C A 6), Zelrich Company, 144 NLRB 1381, 1383, enfd. 344 F 2d 1011 (C A 5) "in the event that this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice in the further (d) Notify said Regional Director, in writing, within 20 days from receipt of this Decision and Recommended Order, what steps have been taken to comply therewith." event that the Board 's Order is enforced by decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "A Decision and Order " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps have been taken to comply herewith " APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, an Agency of the United States Government and in order to effectuate the policies of the National Labor Relations Act as amended, we hereby notify our employees that- After a trial at which all sides had the chance to give evidence , it has been decided that we, Century Electric Motor Company, violated the National Labor Relations Act, and we have been ordered to post this notice. The National Labor Relations Act gives you, as an employee, these rights: To engage in self-organization To form, join , or help unions To bargain collectively through a representative of your own choosing To act together with other employees to bargain collectively or for other mutual aid or protection, and, If you wish, not to do any of these things. Accordingly , we give you these assurances. 1. WE WILLNOTdo anything that interferes with any of your rights listed above. 2. WE WILL NOT discontinue , cancel, abrogate , suspend, modify, or withhold payment in full or in part of, your Christmas bonus, without first notifying and giving your Union the opportunity to discuss and bargain about it with us 3.WE WILL pay each eligible person in the following collective bargaining unit the Christmas bonus which he or she would have received in December , 1968, the same as if we had not unilaterally suspended or withheld payment thereof The amounts of such payments will be calculated in accordance with the usual Christmas bonus formula applied in the years prior to 1968 , and shall have added thereto 6 percent interest from December 25, 1968, to the date of payment The collective-bargaining unit referred to herein consists of- All production and maintenance employees, including group leaders, employed by Century Electric Motor Company at its plant in Gettysburg, Ohio, but excluding all office clerical employees, plant clerical employees, technical employees, watchmen, guards, professional employees, and supervisors as defined in the National Labor Relations Act as amended 4. WE WILL from now on bargain with International Union of Electrical , Radio and Machine Workers, AFL-CIO-CLC, and its Local 768, or with any other duly certified or selected exclusive representative of the CENTURY ELECTRIC MOTOR CO. 1061 employees in the above collective bargaining unit, concerning any proposed change in our Christmas bonus policy , system , or payments , or concerning any other term or condition of employment. CENTURY ELECTRIC MOTOR COMPANY (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced , or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board ' s Regional Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715.