New Orleans Board of Trade, Ltd.

National Labor Relations Board - Board Decisions

Jun 8, 1965

152 N.L.R.B. 1258 (N.L.R.B. 1965)

1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New Orleans Board of Trade, Ltd. and International Union of
United Brewery , Flour, Cereal , Soft Drink and Distillery Work-
ers of America , AFL-CIO. Case No. 15-CA-2427. June 8,1965
DECISION AND ORDER
On September 25, 1964, Trial Examiner Benjamin B. Lipton issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recommended
that such allegations be dismissed. Thereafter, Respondent, the Charg-
ing Party, and the General Counsel filed exceptions to the Decision.
The Respondent and the General Counsel also filed supporting briefs.
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 [Chairman McCulloch and Members Fanning and Jenkins].
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 briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
The Board concurs in the Trial Examiner's recommendation that a
restitution order be withheld in this case. As the Trial Examiner
stated, restitution is not an automatic or inflexible remedy to be imposed
whenever the employer's unlawful unilateral action has resulted in a
detriment to the employees. The unilateral change was a failure of
the Respondent, acting in a good-faith but mistaken belief of what the
law required, to discuss the single question of discontinuance of the
yearend bonus with the Union before taking any action. The record
discloses no other unfair labor practice or other failure or refusal of
Respondent to bargain with the Union. To the contrary, it shows that
the Respondent, in all other respects, accorded the Union the full rec-
ognition required by the Board's certification, and, in fact, an agree-
ment was executed as the result of good-faith bargaining. Under
these circumstances, we believe that ordering Respondent to bargain
on the discontinuance of the 1963 bonus will effectively insure to the
Union the full enjoyment of its rights to bargain collectively.
152 NLRB No. 133.
NEW ORLEANS BOARD OF TRADE, LTD. 1259
We would be content to terminate the discussion of the case at this
point and to rely upon the Trial Examiner 's treatment of the issues,
but the dissenting opinion of Member Jenkins necessitates additional
comments in the majority opinion.
The dissent , which disagrees with our substantive finding of an 8 (a)
(5) violation , places primary reliance upon the case of Westinghouse
Electric Corporation (Mansfield Plant ), 150 NLRB 1574. How-
ever, our Decision in that case is based upon a factual situation mate-
rially different from the instant case. For example , in Westinghouse
the Board found it significant that the subcontracting was a "recurrent
event in a familiar pattern comporting with the Respondent 's usual
method of conducting its manufacturing operations ...." The record
in the instant case however, discloses a payment of a Christmas bonus
each year , without exception , from at least 1951 through 1962 to vir-
tually all Respondent 's employees . Thus , the past practice was the
annual payment of a bonus and not, as the dissent alleges, its payment
or withholding at Respondent's discretion . The failure to pay the
bonus in 1963 to unit employees was a departure from that practice.
The Board also pointed out in Westinghouse that the unilateral
change had no demonstrable adverse impact on the unit employees.
Here, however , Respondent regularly paid an annual bonus to the
employees over a long period of time. ' The employees were justified,
under the circumstances , in expecting the practice to continue.
Respondent 's failure to do so certainly had a significant impact on the
unit employees ' job interests.
A third contributing reason for not imposing upon Respondent a
duty to bargain in Westinghouse was that the Union was in a position
to, and in fact did seek to, negotiate changes in Respondent 's subcon-
tracting practices . In the instant case, however , no mention of the
bonus issue was made by either side during their 4-hour negotiating
meeting. The fact that the Union may have known that Respondent
considered the payment of the bonus as something within its discretion
did not place upon it the burden of introducing the issue into the bar-
gaining session . No obligation was imposed upon the Union to correct
Respondent 's misconception of the law.
Finally, the dissent attaches some importance to the lack of any
"existing benefits" clause. However, the mere fact that the agreement
actually signed in February 1963 did not contain such a clause "does
not necessarily show that the Union meant to forego any right to the
bonus or that the Company could reasonably have so interpreted it." 2
" The record shows that , at least for the years 1960, 1961, and 1962 , the bonus
amounted to approximately 1 month's salary for those employees who worked the
entire year.
2 General Telephone Co. of Florida v. N.L.If.I3., 337 F. 2d 452 (CA. 5).
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
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, New Orleans Board of Trade, Ltd., New Orleans, Louisi-
ana, its officers, agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
MEMBER JENKINS, dissenting :
Contrary to my colleagues, I would find that the discontinuance of
the Christmas bonus by the Respondent did not violate Section 8 (a),
(5) of the Act.
There existed full opportunity for bargaining, and it is clear from,
the record that there was adequate bargaining. The contract nego-
tiated embodied all the terms and conditions of employment as regards
the unit employees .3 No mention was made in the contract or during
negotiations of the annual Christmas bonus even though, as the major-
ity concedes, the Union was aware of Respondent's position that it had
full discretion to pay or withhold the bonus. Nor was any "existing
benefits" clause included in the contract or discussed during nego-
tiations.
In sum, where an initial contract is entered into by the Employer
and the Union, and the Employer theretofore has been free to follow
practices he desired and the Union is aware of these existing practices
at the time the agreement is signed, then a continuation of the prac-
tices-here, paying or withholding the bonus at the discretion of the
employer-does not constitute a unilateral change in the terms and
conditions of employment in violation of Section 8(a) (5). Westing-
house Electric Corporation (Mansfield Plant), 150 NLRB 1574.
For these reasons, I would find no violation of Section 8(a) (5) by-
the Respondent's discontinuance of the Christmas bonus.
8 The pertinent contractual provision reads:
In consideration of the mutual agreement hereinafter set forth , the parties hereto•
contract and agree to all of the following stipulations and conditions which shall'
govern the relationship between the Employer and the Union . [ Emphasis supplied.]'
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Hearing in the above -entitled matter was held before Trial Examiner Benjamin,
B. Lipton on May 12, 1964, based upon a complaint by the General Counsel that
Respondent violated Section 8(a)(1) and (5) of the Act.1 All parties were repre-
sented and participated in the hearing and were afforded opportunity to argue
orally on the record. Respondent and the General Counsel filed briefs, which
have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
'The Union filed and served the charge herein on January 22 , 1964, and the General
Counsel's complaint issued on March 31, 1964.
NEW ORLEANS BOARD OF TRADE , LTD. 1261
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Louisiana corporation engaged in the business , inter alia, of
supervising the weighing , sampling, and inspecting of grain products at certain
grain elevators in the New Orleans, Louisiana , area. During the 12 months pre-
ceding issuance of the complaint , Respondent performed services valued in excess
of $100,000 for various companies each of which annually sells products directly
in interstate and foreign commerce valued in excess of $50 ,000. Respondent
admits, and I find , that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of United Brewery, Flour, Cereal, Soft Drink and Dis-
tillery Workers of America, AFL-CIO, herein called the Union, is a labor organi-
zation within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A Issues
The facts are not in dispute. In December 1963, the employees in the bargain-
ing unit represented by the certified Union (herein sometimes called the unit
employees ) were excluded from the payment of the yearend or Christmas bonus,
theretofore regularly paid annually to all employees , while at the same time all
personnel not in the bargaining unit were given the bonus. By such conduct,
Respondent is alleged to have unilaterally , without bargaining with the Union,
changed existing conditions of employment of the represented employees , in viola-
tion of Section 8(a)(5), and to have treated disparately and discriminated against
these employees , thereby discouraging membership in the Union , in violation of
Section 8 ( a)(1). Respondent asserts the "primary and principal defense" that
the yearend bonus did not constitute "wages," but was rather a "gratuity ," wholly
discretionary with Respondent , and therefore outside the area of compulsory
collective bargaining . It also contends , in the alternative , that the Union "bar-
gained away " or waived any rights it may have had regarding the bonus, and in
the further alternative , that because the Union made no prior demand to bargain
concerning the bonus , Respondent cannot be held to have refused to bargain
on the subject.
B. Introductory and background facts
Respondent , as an incorporated "board of trade ," is a nonprofit membership
organization with the stated objectives of furthering the commercial interests and
amount of business in the city and port of New Orleans . A secretary (R. H.
McCrocklin ) and assistant secretary ( Joseph M. Nielson) are the only officers
who have full -time employment and compensatory status ; all other officers and
members of the board of directors render services on a voluntary and part-time
basis.2 In many respects , Respondent 's organization is comparable to that of a
chamber of commerce . Various departments and committees are set up to per-
form administrative , legislative , civic, commercial , and other functions . Revenue
is received in the form of membership fees and charges for certain services. Par-
ticularly involved herein is Respondent 's grain department , which samples , grades,
and supervises the weighing of all grain coming into two grain elevators in the
general New Orleans area. These services are performed by approximately 50
hourly paid employees in the classifications of samplers , weighmasters , and ship
inspectors , who comprise the bargaining unit represented since December 19, 1962,
by the certified Union .3 Outside the bargaining unit, other employees of Respond-
ent consist essentially of grain inspectors , office clericals , janitors, and telephone
operators , as well as supervisory and managerial personnel.
C. Pertinent evidence
From at least 1951 through 1962, virtually all persons in the employ of
Respondent annually received a yearend bonus. Procedurally , in each of the
2 Respondent , or the "board of trade," consists of about 360 members, of whom about
40 serve either as officers or directors
3 Specifically , the appropriate collective -bargaining unit Is described as follows: "All
samplers , weighmasters , and ship Inspectors , employees of Respondent employed at its
New Orleans , Louisiana , operations, exclusive of office clerical employees, licensed grain
inspectors, sampler foremen , the chief grain inspector, assistant chief grain inspectors,
assistant weighmasters , guards and supervisors as defined in the Act."
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
years, a special bonus committee 4 met (in about December) and made recom-
mendations to the board of directors, which latter body made the final decision.
The bonus committee would normally look at what was done in the past year.
Distribution of the bonus to the employees, as a general rule, was made by the
supervisors in the different departments. Covering the past 4 years, 1960-63, here
is specific documentary evidence (a) of the minutes of the bonus committee and
the board of directors describing the bonus action taken, and (b) of the amounts
of bonus paid to the particular personnel.
The minutes show: In 1960 the bonus committee recommended bonuses total-
ing about $23,775, noting that the rise from the 1959 amount of $21,855 was due
to an increase in the number of employees . In 1961 , the committee recommended
a total of aproximately $25,165. In all instances as reflected in these minutes,
the board of directors simply adopted the recommendations of the bonus
committee.
Testimony of Secretary McCrocklin indicates certain factors taken into consid-
eration by the bonus committee in making its recommendations: (a) The avail-
ability of money to pay the bonus. However, the income of the Respondent from
year to year has been "fairly even." (b) The individual's position or classification
(necessarily reflecting wage or salary). (c) An individual who did an outstand-
ing job during the year would receive special treatment. However, this factor was
not applied to classifications in the bargaining unit. And it was given no publicity,
except that the individual so rewarded was informed of the fact at the time of the
bonus. (d) "To some extent" seniority was considered. (e) The bonus was pro-
rated as to individuals employed less than a year. (f) The individual had to be on
the payroll on the date bonuses were awarded, and would receive no bonus if
terminated before such date. (g) Telephone operators (located at Pilottown,
Louisiana) were given a substantially smaller bonus, and had at times received no
bonus. They were included, however, in the bonus action of the past 3 years.5
A chart attached hereto as Appendix A shows, among other things, the specific
amounts of bonus paid in the years 1960-63 to named individuals, according to job
classification. Secretary McCrocklin broadly stated that "there is no fixed pattern
to it, no set amount, no percentage" in the bonus to be awarded, and that the deter-
mination was made each year by the particular bonus committee and board of
directors. However, apart from the factors described above, his testimony does not
disclose how the amount of bonus was arrived at for the earlier years, except that
it "started with some figure but it did not necessarily coincide with the month's
wages." 6 In 1962 and 1963, i e., the last 2 years, the bonuses given were in fact
substantially equal to the individual's earnings for 1 month.
Respondent's chief grain inspector and chief weighmaster, Thomas H. Papworth,
is the supervisor of the unit employees and does the hiring for this group. He testi-
fied that if the applicants "ask or hear from other employees" concerning the bonus,
"it might be mentioned that the board of trade usually or normally pays a bonus
but there is never any promise of a bonus."
On December 11, 1962, the representation election was held resulting in the
Union's certification on December 19, 1962. Earlier in December, the Union had
called Respondent concerning complaints that supervisors were saying that employees
might lose their bonus if they voted for the Union. As a consequence, on December 6,
Respondent posted on the bulletin board a notice to employees, in part, viz: 7
The facts concerning the payment or not of a Christmas bonus to our employees
are that the payment of a bonus is determined by the Board of Directors The
Directors have not met to discuss and decide the matter . . . , and accordingly
it is absolutely impossible for anyone at all to state what the Board of Directors
may do, or may not do. Any statement by anyone at the present time to the
effect that the Christmas bonus will be paid, or will not be paid is necessarily
inaccurate.
On December 6, 1962. the bonus committee met and recommended a total bonus
payment of about $24,500, which, on December 12, was approved by the board of
directors.
4 The bonus committee consisted of the board of trade president, who served as chair-
man of this committee , three vice presidents , the secretary, and the chairman of the
executive committee In recent years , the committee was made up of the same individuals,
with some small variations.
5In 1963 there were at Pilottown a total of two regular operators and one part-time
operator, all paid at the rate of $1 15 an hour.
8 Effective in 1961, a "new rule of the Board of Directors was passed" that no In-
dividuals would be granted a bonus In excess of 1 month ' s salary.
7 The notice remained posted until after the Christmas holidays.
NEW ORLEANS BOARD OF TRADE, LTD. 1263,
On February 20, 1963 (following negotiations which lasted about 4 hours), the
Union and Respondent entered into a collective-bargaining agreement for a term of
2 years. The subject of bonuses was not raised or discussed by either party, and no
reference thereto appears in the signed contract. The contract contains a "manage-
ment prerogative" clause which states, inter alia, that ". . . all of the rights, powers and
authority that the Employer had prior to the signing of the Agreement are retained
by the Employer . . . except those specifically abridged, delegated, or modified by
this Agreement."
In the contract, the unit employee obtained wage increases (of about $50 a month)
which together with fringe benefits had a total value in excess of $40,000 for the
first year.8 Shortly following execution of the contract, nonunit employees also
received wage increases-most instances, $25 a month, and in a few cases substan-
tially more.9
Dated November 27, 1963, the minutes of the bonus committee indicate the-
following:
After discussion, the committee recommended unanimously that bonuses be
paid to all nonunion employees on the same basis as 1962, i.e., that all salaried
employees would receive one months pay and that all hourly employees would
receive one months straight time pay. Exceptions to the above are those who
have been here less than a year would be granted bonuses on a pro rata basis
and telephone operators at Pilottown would be given the same bonuses as
last year. Total recommended bonuses amount to $13,095.00 as opposed to
1962's total of $21,875.00.
This recommendation was approved by the board of directors without comment.
Secretary McCrocklm's "interpretation" of the bonus committee action for 1963 was
that "they decided [the unit employees'] income was at a fair level without the bonus."
On December 21, 1963, the Union wrote a letter to Respondent in which it called
attention to the exclusion of the unit employees from the annual Christmas bonus
in 1963; advised "that at no time in negotiations did we waive or forsake the right
of our members in receiving this annual bonus," and solicited Respondent's "cooper-
ation in making it possible for our members to receive the bonus." By letter dated
January 8, 1964, the Union received a reply which quoted in full the opinion
Respondent obtained from its attorney, to the effect that the bonus has been and is
entirely discretionary with the board of directors, and no basis exists for the Union's
claim that the unit employees were entitled to such payment. There were no further
communications between the parties on the subject of the bonus. On January 22,
1964, the Union filed the instant charge.
Respondent sought, and was permitted in part, to adduce evidence indicating that
the relationship of the Respondent with the Union since the time of recognition has
been friendly, amicable, and cooperative-a fact which the General Counsel con-
ceded. And, indeed, Respondent's overall or subjective good faith was not questioned
or put in issue.
D. Concluding findings
It is beyond dispute that if the bonuses are in fact encompassed within "wages,
hours, or other terms or conditions of employment," Respondent was legally required
to bargain with the certified Union on the subject, and could not, as it did, act
unilaterally in excluding the unit employees from the 1963 bonuses. However,
Respondent argues principally that the bonuses are purely gifts and as such are not
within the bargaining requirements of the Act.
The evidence is that bonuses were given to virtually all employees over a sub-
stantial period of time-consecutively in each year at least since 1961. In the most
recent years, 1962 and 1963, the basis for the bonus was the equivalent of a month's
pay. Prior thereto, it substantially appears that the bonus amount bore a direct
relation to the recipient's classification and wage or salary. As was testified, Respond-
ent decided not to grant the bonus in 1963 to the unit employees because it believed
they were being sufficiently paid under the contract for their work. Applicants for
employment were advised by Respondent, when the question was raised, that "usually
and normally" a bonus was paid although it was not promised. Certainly, the
employees in general were well aware of the long duration and regularity of the
past payments of the bonus. Implicit in the bonus was an incentive factor related
8In the first year: hourly rate increase of 29 cents generally and 44 cents for leaderman ;
additional 7i/ cents premium pay for work between 4 p m and 7 a.m. ; $9 25 per month-
per employee for health and welfare insurance ; and $4,000 annual payment for accident
and life insurance In the second year: further wage increase of 7 cents an hour, and
increase of health and welfare payment to $12 a month per employee.
O As reflected on the chart in attached Appendix A.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to their employment. Absent a significant change in circumstances, the employees
reasonably could expect and rely upon the continuation of such bonus payments as
part of the "direct and immediate benefits flowing from the employment relation-
ship." 10 Of itself, the aspect of discretion retained by Respondent as to the decision
in awarding the bonus and the amount given in each year does not fix the bonus as
a gift, legally distinguishable from wages. Here the nature of the bonus is not
materially different from that involved in numerous Board and court cases in which
the bonus was held to constitute wages rather than a gratuity." Accordingly, I find
that the bonuses in question were a normal and regular part of the wage structure of
the unit employees and a term or condition of their employment concerning which
Respondent was under a statutory obligation to bargain collectively with the Union.12
Respondent contends that the Union waived its bargaining rights respecting the
subject of the bonus. It predicates its position upon the theory that prior to the
election in December 1962, Respondent posted a notice that "payment or not of
the bonus was entirely a matter for decision by the Board of Directors"; that the
Union was thus aware of Respondent's view that the bonus was discretionary and
not bargainable when the Union agreed to a "management prerogative" clause retain-
ing in Respondent all its prior rights and powers, except as otherwise specified in the
contract; and that the effect was a legal waiver on the part of the Union. It is plain
that in the brief bargaining negotiations on February 20, 1963, the subject of bonuses
was not raised or discussed, and that the contract is silent thereon. The circum-
stances raised by Respondent, including the contract clause, are entirely too vague
to provide a basis for inferring the alleged waiver by the Union. As the subject was
not "consciously explored" in the negotiations, and the Union did not "clearly and
unmistakably waive its interest in the matter," this contention of Respondent is
rejected.13
Respondent's statutory bargaining duty required it to notify, consult, and nego-
tiate with the Union before making any change regarding the payment of bonuses
to employees in the bargaining unit. It was thus prohibited from acting unilaterally,
and obviously a defense cannot lie that the Union failed to request bargaining on
the subject. Nor, in the circumstances here, is Respondent's subjective good faith
relevant in connection with such an alleged violation. "Unilateral action by an
employer without prior discussion with the Union does amount to a refusal to
negotiate about the affected conditions of employment . and must of necessity
obstruct bargaining. ." 14 It is therefore concluded that, by unilaterally with-
holding the yearend bonus from the unit employees in 1963, Respondent violated
Section 8(a) (5) of the Act.
An additional violation is charged against Respondent stemming from the described
conduct in 1963 of omitting the unit employees from the bonus while granting it to
all others. In the disparate treatment of the represented employees, the General
Counsel alleges, in reliance upon Radio Officers,15 that the natural and foreseeable
consequences of Respondent's conduct, regardless of its actual motivation, was to
discourage membership in the Union. While the theory invoked-i.e., that of dis-
cretionary motivation-derives directly from Section 8(a)(3) of the Act, the com-
plaint alleges the violation under the general interference and restraint provision in
Section 8(a)(1).
On this issue, the situation in the present case is similar in material respects to
that which was involved in Speidel Corporation, 120 NLRB 733, where the Board
dismissed the 8(a)(3) allegation. There it was pointed out that the finding of
inherent discriminatory motivation in Radio Officers was based upon disparate treat-
ment as between union and nonunion members where the union was the exclusive
10 W. W Cross and Company, Inc. v. N L R B., 174 F. 2d 875 (C.A. 1).
11E.g., Singer Manufacturing Company V. N.L.R.B., 119 F. 2d 131 (C.A. 7), cert.
denied 313 U.S. 595; N.L.R B. v. Niles-Bement-Pond Company, 199 F 2d 713 (C.A. 2) ;
N.L R.B. v. Crosby Chemicals , Inc., 274 F. 2d 72 (C.A. 5) ; Electric Steam Radiator
Corporation, 136 NLRB 923, enfd. 321 F. 2d 733 (C.A. 6) ; Citizens Hotel Co.,
d/b/a Hotel Texas, 138 NLRB 706, enfd. In pertinent part 326 F. 2d 501 (C A. 5) ;
The American Lubricants Company, 136 NLRB 946; General Telephone Company of
Florida, 144 NLRB 311. However, these cases do not hold that a bona fide gift, one
which is in fact not compensation, may not be given the employees without prior bargain-
ing with the union.
22 Id.
13 The Press Company, Incorporated, 121 NLRB 976, and cases cited therein; Beacon
Piece Dyeing and Finishing Co., Inc., 121 NLRB 953.
14 N.L.R B. v. Benne Katz et al, d /b/a Williamsburg Steel Products Co, 369 U S. 736.
15 Radio Officers' Union of the Commercial Telegraphers 'Union, AFL v. N.L.R.B. (A. H.
Bull Steamship Co.), 347 U.S. 17.
NEW ORLEANS BOARD OF TRADE, LTD. 1265
bargaining agent of both groups. The inference of discriminatory intent may not
be drawn "from the disparate conduct itself" where the union is not , as in Speidel
and here, the exclusive bargaining agent of all the employees . In such situation, the
alleged unlawful motivation must be established on the basis of direct and positive
evidence . Here there is a distinct and conceded absence of union animus. After
the Union won the election , the unit employees weie given the yearend bonus in
1962. Thereafter , Respondent negotiated a contract with the Union , believing in
subjective good faith , though mistakenly , that the subject of bonuses was not bargain-
able but discretionary with management . The unit and nonunit employees were
distinguishable groups in classification and nature of woi k In omitting the repre-
sented group from the 1963 bonus , Respondent was motivated by the judgment that
these employees were being paid sufficiently under the terms of the newly executed
contract containing substantial increases in wages and benefits. In granting the
bonus to the unrepresented employees , Respondent was aware that their earnings
were not equitably aligned with those covered by the contract . On all the record
evidence , I find that Respondent was economically and not discriminatorily motivated
in the disparate bonus treatment of the unit and nonunit employees . Accordingly,
this separate allegation of the General Counsel will be dismissed.10
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth above, occurring in connection with the
operations of Respondent described in section I, above, have a close, intimate, and
substantial relation to trade, traffic , and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As found, Respondent in 1963 unilaterally terminated the yearend bonus of the
employees in the bargaining unit without notifying, consulting , and negotiating with
the certified Union , thus violating Section 8 (a) (5) of the Act . It has recently been
stated by a court of appeals , 17 for example , that in connection with such a violation
"there are circumstances in which , to effectuate the dominant policy of collective
bargaining in good faith , a restitution order is permissible or required ." In that
case, however , the court refused to enforce a restitution order apparently in view of
the adverse financial condition of the respondent at the time of violation,18 but
required instead that the respondent bargain with the union concerning "this Christ-
mas bonus" from which the employees had been excluded . Normally, a restitution
order is issued when unlawful unilateral action has been taken to the detriment of
the empioyees . 19 However , such a remedy is not automatically or inflexibly
imposed 20 While it is a remedial consideration not to permit the respondent to
retain the fruits of its wrongdoings ,21 such is not clearly the situation here . Certainly,
employees are not entitled by way of a Board remedy to payments of which they
were not deprived or which they would not reasonably have received absent the
unfair labor practice . Respondent here strongly argues the equitable consideration
that the unit employees would not have obtained the substantial wage increases and
benefits in the contract if it had not been under the mistaken legal impression that
the bonuses were not mandatorily bargainable , or if it had had to pay these employees
the bonuses as well. From all the evidence , in my opinion , there appears sufficient
substance in this position of Respondent to withhold a restitution order . It will
therefore be recommended that Respondent bargain with the Union , as it should
have done earlier, concerning the 1963 yearend bonus. If the parties reach agree-
ment on this issue, it will afford its own redress to the prior violation . In any event,
the ultimate result will be subject to the usual tests of good -faith bargaining.
76 Speidel Corporation , supra, and cases cited therein ; Pittsburgh -Des Moines Steel Co.
v N.L.R B , 284 F. 2d 74 ( CA. 9) ; N.L.RB v . Crosby Chemicals , Inc., 274 F. 2d 72
( C.A. 5). See also American Lace Mills, Inc., 135 NLRB 1116.
17 N.L R B. v. Citizens Hotel Co., d /b/a Hotel Texas, 326 F. 2d 501 ( C.A. 5).
19 To the same effect, see Wonder State Manufacturing Company, 147 NLRB 179
1a General Telephone Company of Florida, 144 NLRB 311
Id. at footnote 6. And , e g., Wonder State Manufacturing Company , supra.
E.g., N.L .R.B. v. Marcus Trucking Company, Inc ., 286 F. 2d 583 , 593 (C A. 2).
789-730-66-vol. 152-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. All samplers, weighmasters, and ship inspectors, employees of Respondent
employed at its New Orleans, Louisiana, operations, exclusive of office clerical
employees, licensed grain inspectors, sampler foremen, the chief grain inspector,
assistant chief grain inspectors, assistant weighmasters, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the purpose of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4 The Union has been at all times material herein the exclusive representative of
all employees in the aforesaid appropriate unit for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By unilaterally discontinuing payment of the yearend bonus in 1963 to the
employees in the appropriate unit, without bargaining collectively with the Union,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) and (1) of the Act
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that Respondent, New Orleans Board
of Trade, Ltd., New Orleans, Louisiana, its officers, agents, successors, and assigns,
shall-
1. Cease and desist from:
(a) Refusing or failing to bargain collectively with the Union by unilaterally
discontinuing the yearend bonuses of the employees within the appropriate unit
(b) In any like or related manner interfering with the rights of employees guar-
anteed in Section 7 of the Act
2. Take the following affirmative action designed to effectuate the policies of
the Act.
(a) Upon request, bargain collectively with the Union concerning the payment
to employees within the appropriate unit of yeaiend bonuses, for the year 1963, and
on the subject of yearend bonuses generally
(b) Post at all locations in and around New Orleans, Louisiana, where the
employees in the appropriate unit customarily report to work, copies of the attached
notice marked "Appendix B " 22 Copies of said notice, to be furnished by the
Regional Director for Region 15, shall, after being duly signed by the Respondent,
be posted by it immediately upon receipt thereof and be maintained for a period of
60 consecutive 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 such notices are not altered, defaced, or covered by any
other material
(c) Notify the Regional Director for Region 15, in writing, within 20 days from
the date of this Trial Examiner's Decision and Recommended Order, what steps
Respondent has taken to comply herewith.21
It is further recommended that the complaint be dismissed insofar as it alleges
violations of the Act not specifically found herein.
22 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the woids "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order "
23 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 15, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX A
Name
(Confined to payroll of Dec, 1962) Classification Hired
Salary
or wage
Dec 1962
After wage
increase 1963
Bonus
1960
Bonus
1961
Bonus
1962
Bonus
1963
R 11 McCrocklm----------------------------- Scc -Treas------------ ---------- ------- Oct 1951 $1, 000 00 $1, 000 $3, 000 $3, 000 $1, 000 $1,000
J M Nielsen---------------------------------- Asst Sec -Treas----------------------- Aug 1955 600 00 700 1,500 1,500 650 700
W J Morgan--------------------------------- Manager -------------- ---------- ------ Aug 1958 425 00 450 350 450 425 450
T II I'apworth------------ --------- - --------- ChiefIisp ---------------------------- Mar 1952 1,000 00 1,000 800 2,000 1,000 1,000
R F James----------------------------------- hoard M kr ---------- ----------------- Jan 1962 275 00 300 --- ------------ 200 300
II Cavanagh --------------- btenographer-------------------------- Feb 1960 345 00 370 200 300 325 370
F M Nick---------------------------------- S witchbd 01) ------------------------- June 1962 225 00 250 -- 250
0 F Loftiee-------------------------------- Clerk-------------------------------- July 1962 225 00 ------------- ----------- -------- 125
N J Sarrat-- --------------------- Night 0p---_ -_--__ Jan 1959 145 00 165 200 145 165
Ann Smith- ------------------------------- Te0 p------------------------------- Sept 1959 1 15 100 75 100 100
0 C Nelson-------------------------------- Te0p___-------------------------_-_ Apr 1960 1 15 100 75 100 100
F, V Smith----------------------------------- Itel 0p___--------__ ------- Jan 196 1 15 25 25 25 25
Lois Johnson _ ft 0 1) ------------------------------ - 1 15 ----------- ------------ 25 25 -----------
L P Lcgett-----------------------_-_------_-_ Asst Chief Lisp--_-----__------------_ June 1915 575 00 600 800 850 75 600
13 J Angelica--------------------------------- Inspector ------------ ------------------ Dec 1948 525 00 550 500 525 525 550
M A Brockhoeft------------------------------ ----- do ---------------_------- - --------- -------- July 1950 525 00 550 500 525 525 550
M V Bridevau s----------------------------- ----- (10------------------------ --------- July 1955 525 00 550 325 425 435 5511
II M Blades---------------------- ----- do--------- --------- --------------- Mar 1960 525 00 550 ------------ 300 435 550
0. Johnson----------------------------------- -----do-------------------------------- Nov 1960 475 00 550 ------------ ------------ 370 550
0. B Rauch----------------------------------- Asst C hf W'niaster------------------ June 1954 400 00 425 400 425 400 425
N J Rome------------------------------------ Inspector ----------------------------- Feb 1948 385.00 410 400 425 385 410
W O Cannon-------------------------------- -----do----------------- ------ Aug 1960 310 00 410 ------------ ------------ 305 410
A J Thompson------------------------------- Asst ChiefInsp----------------------- Mar 1959 550 00 600 500 700 550 600
L C Matherne-------------------------------- Inspector- --------- ------ ---------- ---- Dec 1953 525 00 -------------- 500 525 525 ------------
W L heron -------------------------- ----- do--------------------------------- Oct 1956 525 00 550 325 425 520 550
f F DeRoche--------------------------------- ----- do--------------------------------- Mar 1960 475 00 550 260 410 550
APPENDIX A-Continued
Name
(Confined to payroll of Dec. 1962 ) Classification Hired
Salary
or wage
Dec. 1962
After wage
increase 1963
Bonus
1960
Bonus
1961
Bonus
1962
Bonus
1963
R. J. Hidalgo__________________________________ Inspector ______________________________ Feb 1960 $475 00 $550 00 _ $410 $550
C G. Austtun_________________________________ Asst Chf W'master__-_______________ June 1954 400.00 425 00 $100 425 400 425
R A. Laporte_________________________________ Leaderman____________________________ Nov 1961 1 73 2 17 ____________ 30 300 ____________
K A Fauries---------------------------------- -----do--------------------------------- Oct. 1959 1 73 2 17 90 250 317 -----------
V. Miorana ___-------_________________________ Sampler__ ______----_____----------____ Feb. 1961 1 73 2 02 ------__---- 150 305 -----------
G. Albrecht------------------------------------ -----do-------------------------------- July 1961 1 73
2 02 ------------ 75 300 ------------
P. W Amadeo--------------------------------- -----do--------------------------------- Aug 1961
1 73 2 02 ------------ 60 300 -- ----------
L A. Bolotte---------------------------------- -----do--------------------------------- Apr. 1961 1 73 2 02 ------------
120 300 ------------
F J Cousins ---------------------------------- -----do--------------------------------- Oct 1962
1 55 2 02 --- --------- -- 50 ------------
L R Daigie____________ ---------------------- -----do-------------------------------- Nov . 1959 1 73 2 02
200 250 300 ------------
R J. Elswirth ____________°_____________-______ _____ do_________________________-------_ Oct 1959 1 73 2 02 200 250 300 __ __________
E H Johnson--------------------------------- -----do--------------------------------- Aug. 1961 1 73
2 02 60 300
V. Marconi------------------------------------ -----do--------------------------------- July 1961
1 73 2 02 ------------ 90 300 ------------
J. R. Moriarity-------------------------------- ----- do--------------------------------- Jan. 1961 1 73 2 02 ------------ 165 300 ------------
R. L Murphy--------------------------------- -----do--------------------------------- Nov 1961 1 73 2 02 -----------
30 300 -----------
J W Roach----------------------------------- ----- do--------------------------------- Jan 1962
1 73 2 02 ----------- - ------------ 280 ------------
V. E San Andres------------------------------ ----do------------------------------ Apr 1962 1 73 2 02 ------------ ------------
210
R S Schultz---------------------------------- ----- do--------------------------------- Oct 1961 1 73
2 02 ------------ ------------ 300 ------------
O H Smith----------------------------------- -----do--------------------------------
Aug 1961 1 73 2 0 ------------ 30 300 ------------
W. H Young---------------------------------- -----do--------------------------------- July 1961
1 73 2 02 ------------ ----------- 305 ------------
R. L Baudier --------------------------------- ----- do-------------------------------- Sept 1961 1.73
2 02 ------------ 45 300 ------------
J. E. Borras ----------------------------------- ----- do--------------------------------- Aug .
1961 1 73 2 02 ------------ 60 300 -
E E Cochran--------------------------------- ----- do--------------------------------- May 1958 1.73 2 02 250 300 300 --- ---------
E. A Guidry---------------------------------- -----do-------------------------------- Dec. 1961
1 73 2 02 ------------ ------------ 300 ----------
A. C Lee-------------------------------------- -----do---------------------------------
May 1961 1 73 2 02 ------------ 105 300 -----------
H F. S stt. do____ ___________----------------- Nov. 1960 1 . 73 2.02 15 200 300 ____________
W 0 Martinez ( probationary) ________________ Sampler------------------------------- Nov 1962 $1 55 $1 82 ------------
------------
$ 35 -
J A. Messina (probationary) ------------------ ----- do-------------------------------- Nov 1962 1 55 1 82 ------------ 30 ------------
Olen Bryant (probationary) ------------------- ----- do-------------------------------- Dec 1962 1 55 1 82 ------------ ------------ 25 ------------
O. W Petersen (probationary) ---------------- ----- do--------------------------------- Nov 1962 1 55 1 82 ------------ ------------ 25 ------------
D P. Melford (probationary)------------------ ----- do-------------------------------- Nov 1962 1 55 1 82 -- ---------- ------------ 25 ------------
S P Dufrene (probationary) ------------------ ----- do--------------------------------- Nov 1962 1 55 1 82 ------------ ------------ 25 ------------
M A Boudreaux ______________________________ Weighmaster -------------------------- Apr 1951 1 79 2 08 $325 $350 310 ------------
E H. Calligan- -------------------------------- ----- do--------------------------------- Dec 1948 1 79 2 08 325 350 310 -____-------
L P Weigel ----------------------------------- -----do ------------------------------ July 1957 1 79 2 08 300 325 310
V J. Demger ---------------------------------- ----- do--------------------------------- Oct 1956 1 79 2 08 300 325 310 ____________
O M Lacefield -------------------------------- ----- do--------------------------------- Jan 1958 1 79 2 . 08 300 325 310 ------------
Ivy Mitchell ___________________________________ ----- do--------------------------------- Aug 1952 1 79 2 08 325 350 310 ____________
J. E. Poulsen __________________________________ ----- do--------------------------------- Aug 1959 1 79 2 08 200 250 310 ____________
S. Freeman____________________________________ ----- do--------------------------------- Mar 1960 1 79 2 08 135 200 310 ------------
J I McHugh --------------------------------- ----do--------------------------------- June 1959 1 79 2 08 ------------ 90 310
_
_
------------
W. M. Johnson -------------------------------- ----- do--------------------------------- Nov 1955 1 79 2 08 --- --------- 325 310 ------•-----
D F. Skinner --------------------------------- ----- do------------------------------- June 1960 1 79 2 08 ------------ 200 310 ------------
N M Dauphin ------------------------------- ----- do--------------------------------- Mar 1959 1 79 2 08 -- ---------- ------------ 310 ------------
O F Robinson ------------------------------ ----- do--------------------------------- Apr 1961 1 79 2 08 ------------ ------------ 310 ------------
O A Trahan ---------------------------------- ----- do--------------------------------- May 1948 1 79 2 08 325 350 310 ------------
P. J Bertucci __________________________________ ----- do--------------------------------- Oct 1959 1 79 2 08 200 250 310 -- ----------
P P Ouillory --------------------------------- ----- do--------------------------------- Mar 1960 1 79 2 08 135 200 310 ----- -------
L M Bordelon________________________________ ----- do--------------------------------- Mar 1960 1 79 2 08 120 200 310 ------------
Y W Lanata__________________________________ ----- do--------------------------------- Mar 1060 1 79 2 08 120 200 310 ------------
C J Dufrene ---------------------------------- ----- do --------------------------------- Oct 1960 1 79 2 08 ------------ ------------ 310 ____________
E.J Chiasson------------------------------- ---- do-------------------------------- Mar 1960 1 79
-
2 08
-
------------
-
-----------
_
310 -----------
6^
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT unilaterally discontinue the yearend < bonuses of our employees
in the appropriate bargaining unit, without bargaining collectively with Inter-
national Union of United Brewery, Flour, Cereal , Soft Drink and Distillery
Workers of America , AFL-CIO. The appropriate unit is:
All samplers , weighmasters , and ship inspectors , employed at our New
Orleans, Louisiana , operations , exclusive of office clerical employees,
licensed grain inspectors , sampler foremen , the chief grain inspector , assist-
ant chief grain inspectors , assistant weighmasters , guards, and supervisors
as defined in the Act.
WE WILL NOT in any like or related manner interfere with our employees'
rights guaranteed in the Act.
WE WILL, upon request , bargain collectively with International Union of
United Brewery, Flour, Cereal , Soft Drink and Distillery Workers of America,
AFL-CIO, concerning the payment of yearend bonuses for the year 1963, and
on the subject of yearend bonuses generally.
NEW ORLEANS BOARD OF TRADE, LTD.,
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.
Employees may communicate directly with the Board 's Regional Office, T6024
Federal Building (Loyola ), 701 Loyola Avenue, New Orleans, Louisiana , Telephone
No. 529-2411, Extension 6396, if they have any questions concerning this notice
or compliance with its provisions.
Ward Manufacturing , Inc. and International Union of Electrical,
Radio & Machine Workers, AFL-CIO. Case No. 9-CA-3127.
June 8,1965
DECISION AND ORDER
On November 25,1964, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The Trial Examiner
also found that the Respondent had not engaged in certain other unfair
labor practices and recommended dismissal of the complaint with
respect thereto. Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief, and the Charging Party filed cross-
exceptions and a brief in support thereof. The Respondent then filed
a brief in answer to exceptions of the Charging Party.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
152 NLRB No. 127.