Philips Broadcast Equipment Corp.

National Labor Relations Board - Board Decisions

May 13, 1969

175 N.L.R.B. 939 (N.L.R.B. 1969)

PHILIPS BROADCAST EQUIPMENT CORP.
Philips Broadcast Equipment Corporation and
District 15, International Association of
Machinists and Aerospace Workers, AFL-CIO.
Case 22-CA-3451
May 13, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On January 6, 1969, Trial Examiner Lloyd S.
Greenidge issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrgm 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 alleged in the complaint
and recommended , dismissal as to such allegations.
Thereafter, the Respondent and the General Counsel
filed exceptions to the Trial Examiner's Decision,
and supporting briefs, and the Respondent filed an
answering 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 rullings 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 recommendations of the
Trial Examiner only to the extent consistent
herewith.
The Trial Examiner found, and we agree, that the
Respondent's refusal to execute a purported
agreement with the Union, providing for a cash
settlement to employees in lieu = of free bus
transportation , was&.not violative of Section 8(a)(5)
of the Act. The Trial Examiner also found, however,
that the Respondent did violate Section 8(a)(5) by
unilaterally discontinuing bus service and travel
allowances-, without prior consultation with the
Union. We find merit in the Respondent's exception
to this latter finding.
As more fully set forth in the Trial Examiner's
Decision, the Respondent, in late May 1967, notified
the Union of its intention to move its plant from
Mt. Vernon, New York, to Paramus, New Jersey.
On June 27, 1967, the parties executed a
side-agreement with respect to bus service and
transportation allowances, effective July 10, 1967,
939
for a period of 6 months, which provided, in
pertinent part, as follows:'
RELOCATION BENEFITS FOR HOURLY
EMPLOYEES:
The final relocation benefits as negotiated
between the Union and the Company are as
follows:
1. For a period of six (6) months, if enough
people require this service to make it feasible, the
Company will provide free daily bus
transportation from Mt. Vernon, New York to
Paramus, New Jersey and return.
(a) At the end of six (6) months, if the bus
service is still required, the Company will meet
with the Union and work out a program to share
the expense of the bus service between employees
using the bus and the Company.
The side-agreement also provided for payment of
transportation allowances for those who used their
own cars or other means of transportation, for a
period of 6 months, and relocation payments for
those who moved their residences.
On January 2, 1968, the parties executed a 3-year
contract, effective from December 3, 1967 to
December 5, 1970, which contract, however,
contained no reference to bus service or travel
allowances.' On January 17, 1968, the parties met to
discuss the possibility of continued bus service. The
Respondent stated that' it was of the opinion that
bus service was no longer necessary, but if the
Union felt otherwise, it would continue the service
for a limited period provided reasonable
arrangements could be made; and, moreover,
although not required by the terms of the June 27
agreement, it was prepared to consider extending
travel allowance payments under the same
conditions. The Respondent then proposed that the
programs be extended for a period of 2 months,
beginning January 31, 1968, on a cost-sharing basis,
with employees paying 50 percent of the cost, but
this was rejected by the Union at a membership
meeting on January 29, 1968.' At a meeting of the
parties on January 29, the Respondent, although
expressing disappointment at the Union's action,
announced that it would continue bus service and
travel allowances through February on a
week-to-week basis. During the period February 28
to March 11, 1968, a number of communications
passed between the Respondent and the Union. The
Respondent advised the Union, and the employees,
that the programs would be continued to March 31,
1968, and then terminated. The Union objected to
the proposed discontinuance as a "violation of
intent" of the June 27, 1967 agreement.
'The Respondent moved its plant to Paramus, New Jersey, in July 1967.
'The Union attempted to include in the contract a provision referable to
bus service and travel allowances, but the Respondent declined to do so on
the basis that these programs were temporary arrangements.
'The Union representative took the position that the programs should be
175 NLRB No. 159
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the meeting of March 14, 1968, the Union
proposed that the programs be extended over the life
of the basic contract, with some cost-sharing, but
the Respondent rejected this proposal. The
Respondent then informed the Union that it wanted
to get out of the busing business , and made several
offers to sell its two buses to the Union, the last
offer being for $2 per bus. The Union representative
rejected the offers and proposed a cash settlement in
lieu of busing, and the parties tentatively agreed on
the sum of $500, payable in installments , subject to
approval by the Union membership. After the
tentative agreement the Union upped its demands by
insisting that no taxes be withheld by the
Respondent from the $500 payment.
The parties met again on March 15, 1968, at
which time the Respondent, inter alia , informed the
Union that the Company was required to withhold
taxes from the $500 cash payment. The Union
insisted on a flat $500 payment, but, after receiving
advice from its counsel that the withholding was
required by law, requested a higher cash payment to
absorb the taxes, which the Respondent rejected.
Thereupon the Union withdrew its offer and
threatened to take the issue to Court. By letter
dated March 20, 1968, the Union attorney advised
the Respondent that it would commence arbitration
proceedings on the programs, and by letter dated
March 21, 1968, the Respondent's attorney replied
that the issue was not arbitrable, and requested
another meeting. At a meeting held in the office of
the Respondent's attorney on March 28, 1968,
attended by the parties and their attorneys, the
Respondent expressed a willingness to review the
entire question of bus service and travel allowances,
but this was rejected by the Union attorney.
Thereupon the Respondent's attorney announced
that bus service would be continued for a limited
period after March 31. In April 1968, the
Respondent notified the employees that bus service
would finally be discontinued on April 19, 1968, and
that it would honor commuting expense reports
through that date.
On the basis of the foregoing, the Trial Examiner
concluded that the Respondent unilaterally
discontinued bus service and travel allowance
without prior consultation with the Union, and
thereby violated Section 8(a)(5) of the Act. We
disagree.
The record shows that under the side-agreement
of June 27, 1967, in connection with the
Respondent's plant relocation from Mt. Vernon,
New York to Paramus, New Jersey, the Respondent
agreed to maintain free bus service and travel
allowances for its employees for a period of 6
months, or until January 10, 1968, at which time, if
bus service was still required, the Company would
discuss with the Union a program for
expense-sharing . As the Respondent points out, this
extended for the life of the 3 -year contract.
side-agreement was, at best, a temporary
arrangement , and was designed to facilitate and ease
the financial burdens imposed on the employees
resulting from its move. Nevertheless, after the
expiration of the stated 6-month period, the
Respondent met with the Union on no less than 5
occasions in an effort to reach agreement on the
future need for bus service. In fact, the Respondent
continued free bus service until April 19, 1968, a
period in excess of 9 months from the relocation of
its plant; and, although not obligated under the
side-agreement to continue paying travel allowances
after January 10, 1968, nevertheless, honored such
travel allowances until April 19, 1968. Moreover,
the record reflects that it was the Union which
terminated the negotiations on March 15, and that
it was the Respondent which expressed a willingness
to resume negotiations on March 28.
Under these circumstances, it is apparent that the
Respondent entered into extensive and detailed
discussions with the Union on the subject of bus
service and travel allowances after January 10, 1968,
and that negotiations were, in fact, broken off by
the Union. Thus, without passing on the question
whether the Union waived its bargaining rights by
acquiescing in the refusal of the Company to make
any provision for either bus service or travel
allowances in the basic 3-year contract, we find,
contrary to the Trial Examiner, no reasonable basis
for concluding that the Respondent unilaterally
discontinued bus service and travel allowances in
derogation of its bargaining obligation vis-a-vis the
Union. We shall, therefore, dismiss the allegations
of the complaint in this respect.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LLOYD S. GREENIDGE, Trial Examiner: In this
proceeding, the General Counsel of the National Labor
Relations Board (herein called the General Counsel and
the Board , respectively) issued a complaint ' alleging that
Philips Broadcast Equipment Corporation , herein called
Respondent and, at times , the company, had engaged in
and was engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act). The Respondent's answer to the
complaint admitted some of its allegations and denies
others; in effect, it denied the commission of any unfair
labor practices. Pursuant to due notice , a hearing was held
before me at Newark, New Jersey, on various dates
between September 17 and 27, 1968.2 All parties were
'The complaint was issued on June 7 , 1968. The charge initiating the
proceedings was filed on April 22, 1968.
'Unless otherwise noted , all dates herein refer to the year 1968.
PHILIPS BROADCAST EQUIPMENT CORP.
afforded full =opportunity to call and examine witnesses, to
argue orally, and thereafter to submit briefs. Briefs
submitted by the Respondent and the General Counsel
have been carefully considered.
Upon the entire record in the case, including my
evaluation of the reliability of the witnesses based upon
the evidence and my observation of their demeanor, I
make the following:
FINDINGS OF FACT
1. COMMERCE; THE UNION
The complaint alleges and the answer admits that, at
all times material, Respondent, a Delaware corporation
engaged in the manufacture, sale, distribution and service
of electronic equipment, established its principal plant in
Paramus, New Jersey, in or about July 1967 and since
then has maintained its principal office there as well.
During the calendar year 1967, Respondent, in the course
and conduct of its business operations, caused to be
manufactured, sold and distributed at the Paramus plant,
products valued in excess of $50,000, of which products
valued in excess of $50,000 were shipped directly from
Paramus to states of the United States other than the
State of New Jersey.
The Charging Party, District No. 15, International
Association of Machinists and Aerospace Workers,
AFL-CIO, herein the Union, is a labor organization
within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Introduction; the Issues
Until March 1967, Philips Broadcast Equipment
Corporation (PBEC), formerly an affiliate of Philips
Electronics Instruments , Division of Philips Electronics &
Pharmaceutical Industries Corporation (PEI), was known
as Studio Equipment Division of North American Philips
Co., Inc. About that time, Studio Equipment, then located
in Mount Vernon, New York, was succeeded by PBEC,
the Respondent herein, which continued essentially the
same operation performed by Studio Equipment at the
same location and with substantially the same employee
complement. John R. Kelly, who was the industrial
relations manager for Studio Equipment, has the same
position with and performs like duties for the successor
corporation. By mutual consent of all parties, the
collective-bargaining agreement in effect in March 1967
between PEI and District 15 was applied to Respondent's
employees. In about May 1967, the Respondent and
District 15 began negotiations for their first
collective-bargaining agreement . The negotiations
continued until December 20, 1967 when a memorandum
of agreement was signed. The agreement was ratified by
the employees on December 21 and a final agreement was
executed by the parties on January 2, 1968.' The parties
stipulated, for the purpose of this proceeding only, that, at
all times here material, District 15 has been and is the
exclusive collective-bargaining representative of
Respondent's production and maintenance employees and
that these employees, exclusive of all clerical employees,
professional employees, watchmen, guards and
supervisors, constitute an appropriate unit for the
purposes of collective bargaining.
'While the agreement was signed by District 15, the unit employees were
and are members of Lodge 1709 , a component of District 15.
941
The controversy in the instant case stems from a claim
by the General Counsel that, on March 15, 1968,
Respondent "reneged" on an agreement with the Union to
pay certain employees in the appropriate unit, who had
transferred from Respondent's old location in Mount
Vernon, New York, to its new plant in Paramus, New
Jersey, a set sum in lieu of free bus transportation and
travel allowances and that, on April 19, Respondent
discontinued said bus service and travel allowances.
In this connection, the complaint, as amended at the
hearing, alleges, in substance, that Respondent violated
Section 8(a)(5) and (1) of the Act by (1) reneging on a
final settlement agreement with the Union reached on
March 14 by which Respondent agreed to pay certain unit
employees a net sum of $500 in lieu of free bus
transportation provided under a June 27, 1967 agreement
between the Respondent and the Union, subsequently
informing the Union that it had no further obligation on
the subject and, at all times thereafter, refusing to execute
an agreement containing the terms agreed to on March 14
and, (2) on April 19, unilaterally terminating free bus
service and transportation allowances.
With regard to the first count, the Respondent in its
answer denies that it "reneged" on the alleged agreement
and denies all other allegations set forth therein. And, as
to the second, which alleges a unilateral discontinuance of
free bus service and travel allowances, the Respondent
avers (1) that the parties could not agree on "a program
to share the cost of bus service between the employees
using the bus and the Company" and the discussions with
reference thereto came to an impasse, (2) that, in
accordance with the terms of the said June 27 agreement,
Respondent, on March 31, 1968, announced that it would
discontinue bus service and cease to pay travel allowances,
and (3) that, on April 19, after prior notice to the Union
and employees, again under the terms of the said June
1967 agreement, Respondent discontinued the programs.
B. The History of the Bus Service and Travel
Allowances Programs; the Unilateral Discontinuance
of the Programs
The basic facts are not in dispute. In May or early June
1967, Respondent notified the Union that it was
contemplating moving its Mount Vernon operation to
Paramus. The Union was afforded an opportunity to
discuss the decision to relocate and the effects thereof. As
a result of these discussions, the parties reached an
agreement concerning relocation benefits for all hourly
rated employees, memoralized in a document dated June
27, 1967 and effective from 10 July for a period of 6
months." By March, about 76 employees in the bargaining
`The full text of the June 27 agreement is as follows
RELOCATION BENEFITS FOR HOURLY EMPLOYEES'
June 27, 1967
The final relocation benefits as negotiated between the Union and the
Company are as follows:
I For a period of six (6) months, if enough people require this service
to make it feasible, the Company will provide free daily bus
transportation from Mt. Vernon, New York to Paramus, New Jersey
and return.
a. At the end of six (6) months, if the bus service is still required, the
Company will meet with the Union and work out a program to share
the expense of the bus service between employees using the bus and
the Company.
2. Employees who find that they cannot use the bus provided by the
Company and who commute to Paramus using public transportation,
(other than taxies ) will be reimbursed for this expense as incurred over
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit _ had transferred ta Paramus .' Of this number,
approximately 35 employees sought and received
reimbursements for the use of their automobiles on
various dates between June 1967 and April 19,` and, in
this period , about 31 employees were, on one or more
occasions,,,,passengers in buses provided by the
Respondent . The buses brought the employees to work in
the morning `and returned them to Mount Vernon at the
end of the work ,day. The first record of the number of
employees who used bus service was made on March 11,
at the time of an accident in which one of the buses was
involved. On that occasion, about 33 employees were
passengers in . a bus enroute to Mount Vernon. From
about March 28 through April 19, records of riders on the
morning -and afternoon trips were prepared and
maintained 8 The records are incomplete, however, and
reveal only the minimum number of riders at any one
time as there were occasions when riders failed to sign the
lists.,
The parties began negotiations for a
collective-bargaining agreement in July and negotiations
continued until December 20. During this period , Anthony
Di Coio , the business representative and principal
negotiator for the Union , made several demands that the
company discuss the bus service and travel allowance
programs . On each occasion , John R. Kelly, the
company's industrial relations manager and Di Coio's
counterpart in the negotiations , refused stating that the
programs were _ temporary arrangements , that the
company did not intend to remain in the busing business
and that the matter would be considered when the June 27
agreement expired.
On December 20, the day a final understanding was
reached, lei Coio reminded Kelly that the parties had not
taken up the subject of bus service and travel allowances
that expense which they now incur in commuting to Mt . Vernon, for a
period of up to-six (6) months.
3. For a period of six (6) months after the date of transfer of an
employee, those employees using personally owned automobiles to
commute to Paramus will receive benefits as follows for each day that
they work.
a. 50 cents per day bridge toll allowance.
b. 6 cents per mile for the additional mileage which they must drive
to get to and from Paramus over that mileage they now have to drive
to get , to and from work in Mt . Vernon.
4. Employees raiding a East of the -Hudson River who decide to
relocate their residences to provide easier commuting , will qualify for a
$275 .00 moving subsidy, if such expense is incurred . Notice of intention
to move must be given to the Company within six (6) months after
transfer of the employee to Paramus . To qualify for this benefit, moves
must actually take place within one (1) year after transfer . Employees
moving their residences under this provision may be granted one day off
with pay on the,day of moving.
5. Employees who do not desire to commute to Paramus , may upon
time of transfer elect to resign and become eligible for a special
severance pay allowance as follows:
a. One days' straight time pay for each month of service after
January 1, 1966 , times 125 per cent.
6. Employees who-transfer to Paramus will be eligible for the benefits
described in Paragraph 5 above if they make their election to resign
-within 90 days after transfer.
'The overall size of the unit in Mount Vernon and later in Paramus does
not appear.
`Commuting expense reports filed by one employee were received in
evidence . They show that, from August 1967 through April 19, employee
John Shields was reimbursed in the amount of about $729.39.
'Initially, Respondent chartered one bus but , after the number of riders
increased , rented two. In April, Respondent reverted to the use of one bus.
'Although foremen were instructed to prepare lists of riders , there were
occasions when the lists were prepared by the employees themselves.
and told him that the inclusion of these provisions would
help the Union to sell the contract to its membership as it
was weak without them. To all this, Kelly replied that he
would take his chances. At the meeting called to ratify the
agreement, Di Coio told the membership that the
agreement contained no provision for continued bus
service as the company had refused to consider the matter.
After a strike vote which lacked the requisite, majority,'
the agreement was ratified.
On January 2, a collective-bargaining agreement was
executed by the parties effective from December 3, 1967
through December 5, 1970. Prior to execution, however,
the Union again requested the inclusion of provisions for
continued bus service and travel allowances and Kelly
again refused, this time, stating that he would do without
a contract before committing the company to an extension
of the programs. In the end, the final agreement contained
no reference to bus service and travel allowances. Thus, a
threshold question is presented whether the Respondent
was required to bargain about these subjects. In explaining
the employees' rejection of the Respondent's proposals for
cost sharing and subsequent discontinuance of bus service,
more fully discussed below, Di Coio told Kelly that,
Respondent had encouraged employees to move to
Paramus with promises of bus service and that they
viewed the proposals as a cut in pay.', According, I accept
the evidence referred to, which was not controverted, as,
plausible and credible, and find that, although not covered
by the collective-bargaining agreement but instead
embodied in a side agreement, bus service and travel
allowances were existing employment terms related to
wages about which the Respondent was obligated to
bargain. Sometime during the meeting on January 2,
Kelly told the union representative that the June 27
agreement was due to expire on January 10 and suggested
that the parties enter into a discussion on the question of
whether bus service was still required. The earliest
mutually convenient date was January 17.
At the January 17 meeting, Kelly told the union
committee that the June 27 agreement provided relocation
benefits for 6 months only but paragraph 1(a) thereof left
open the possibility of continued bus service on a cost
sharing basis . He stated that, in his opinion , the buses
were no longer necessary but, if the union thought
'The following is a listing of the number of morning and afternoon
passengers prepared from records submitted by the Respondent:
Dates Morning Afternoon
March 28 36
March 29 25
April 1 31 33
April 2 38 36
April3
April 4
April 5
April8 4
April 9 29 22
April 10 30 29
April 11 32 31
April 12 20 21
April 15 33
April16 32 27
April 17 29 31
April 18 35 29
April 19 34 31
"From a composite reading of Kelly's notes of the meeting of January
29, in evidence, and other evidence relating to the events of that day.
PHILIPS BROADCAST EQUIPMENT CORP.
otherwise , he would ' continue - the service for a limited
period provided a reasonable arrangement could be made.
Further, Kelly said that, although not required by the
terms of the June 27 agreement, the company was
prepared to consider including travel allowance payments
as well under the same conditions . Kelly then proposed
that the programs be extended for a period of 2 months
beginning January 31 on a cost sharing basis with the
employees paying 50 percent of the cost . At first, the
union committee turned down the proposal but then
agreed to submit , it to the membership . Either the day
before or the day after the January 17 meeting, shop
steward Morris was called into Kelly's office where
comptroller Halsey discussed past and future costs of the
programs , explained how he had arrived at his estimates
of anticipated costs - and invited questions with respect to
the matters he had discussed.
On January 29, the Union called a general membership
meeting in the plant cafeteria for the purpose of
considering the company 's cost sharing proposal . After the
meeting , Di Coio told Kelly that the membership had
rejected the company's proposal . Di Coio went on to say
that the Respondent had promised bus service to induce
employees to move to Paramus and that they viewed the
proposed discontinuance of the service after March 31 as
a cut in pay . He then suggested that the company run the
buses for the life of the contract and continue payments of
travel allowances for a like period. Di Coio also said that
the 50-50 proposal was not fair because the employees
would - have to pay a tax on their share , while the
employer could write off its share as a business expense.
Kelly expressed disappointment in the action of the
membership and repeated the position he had taken
previously namely that bus service was not required. He
told the committee he had been advised by PEI officials
that the company's employees were parking their
automobiles in PEI's lots and taking the bus and also
stated that the results of a recent survey showed that
about 24 employees were going to move to Paramus."
Kelly then advised the committee that the company would
continue bus service and travel allowances through
February -10 but cautioned that he might have to
discontinue-the programs after that date.
In a telephone conversation sometime after the meeting
of January 29, Kelly told Di Coio that bus service would
continue through February on a week to week basis and
that he would advise the employees at the beginning or
towards the end of each ` week what to expect the next
week . According to credited and uncontroverted testimony
of Kelly, Kelly was motivated to extend the programs
because he had - been told by the Union that they were
emotional and critical issues with the employees.
Between - February 28 and March 11, three letters
passed between Kelly and Di Coio concerning the
discontinuance of the programs . On February 28, Kelly
advised Di Coio that the programs would be extended
until March 31 and then terminated . On March 1, the
company posted a notice to all employees to this effect. In
response to the February 28 communication , Di Coio, by
letter dated March 4, objected to the discontinuance of the
programs as a "violation of the intent" of the June 27
agreement , requested that his letter be considered a
grievance , asserted that the subject of the discontinuance
of the programs had not been discussed during the
negotiations for the January 2 agreement or at any other
"As of the date of the hearing, only four employees had actually moved
to the new location.
943
time before January 29, and finally suggested that the
parties meet after March 6 and attempt to work out a
cost sharing arrangement "with the known fact that such
bus and travel allowances program will be continued
during the lifetime of the collective-bargaining
agreement." Kelly replied on March 11 stating, inter alia,
that the purpose of the relocation benefits programs was
to assist employees in adjusting to the move by providing
temporary bus service for those who had no other means
of getting to work; that, during contract negotiations, the
company had resisted many attempts by the Union to
have a busing program included in the January 2
agreement; and, that the cost of operating two buses and
the "severe inequity" existing between employees residing
in New Jersey, who receive no benefits from the
programs, and those living in New York, who are its sole
beneficiaries, leave the company no alternative but to
proceed as set forth in its letter of February 28.
On March 28, Murray Gartner, attorney for
Respondent, announced at a meeting with Stephen C.
Vladeck, attorney for the Union, attended by their
respective clients, that the company would continue bus
service for a limited period after March 31 but with only
one bus and Vladeck replied that he was not agreeing to
the extension. In a notice dated April 1, Respondent
advised the employees that bus service would be extended
for 1 week beyond March 31 and that they would receive
48 hours advance notice of its termination. By notice
dated April 15, Respondent informed the employees that
bus service would be discontinued after April 19 and, on
April 24, announced that it would honor commuting
expense reports for the period April 1 through April 19.
Kelly admitted that, between March 15 and April 19, the
company did not request the union to bargain with regard
to bus service and travel allowances and the effects on the
employees of the decision to discontinue the programs.
Further, it is conceded that, except for the notices to
employees, the company did not communicate with the
Union about this matter. Thus, on April 19, the bus
service and travel allowance programs came to an end.
C. The Alleged Agreement and its Repudiation
The testimony and exhibits relating to the events of
March 14, 15 and 28 were extensive and voluminous.
However, for the most part, the evidence is not in
substantial conflict and, where there is a conflict as to any
relevant fact, I shall set forth the resolution of the
credibility issue . What follows is a synthesis of the
credited testimony.
1. The meeting of March 14
Following the exchange of letters referred to above, the
parties met on March 14 in the company's conference
room to discuss the future of the bus service and travel
allowances programs . Present for the Respondent were
Kelly and Wayne Gilbert, Kelly's assistant; in attendance
for the Union, Di Coio, Morris, John Shields and possibly
one Feliciano.
Morris, Shields, Kelly and Gilbert testified as to what
transpired at the meeting.' 2 At the outset, Di Coio, who
"Di Coio was unable to testify as he was hospitalized at the time.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the sole spokesman for the Union, asked Kelly, the
sole spokesman for the company, if the negotiations would
take place under the January 2 or the June 27 agreement.
Kelly replied that they should be conducted pursuant to
the letter agreement of June 27 and Di Coio agreed to
proceed on this basis. After the meeting got under way, Di
Coio made a number of proposals, among them, that the
company extend the programs for the life of the January 2
agreement with the employees paying 25 percent of the
cost, or increase the hourly rate of employees affected by
the move. Kelly replied that the company had agreed to
consider an extension of the busing program only if
conditions required it to do so and that, insofar as travel
allowances were concerned, he was not adverse to
extending the program provided a satisfactory agreement
could be reached on the busing situation. Kelly again
rejected the suggestion that the company extend the
programs for 3 years, reminded Di Coio that the
employees had received a pay raise under the January 2
agreement and, then said that they would suffer no loss in
wages if bus service was terminated. To the latter
comment, Di Coio replied that the Respondent had
established new job classifications and set pay rates
appropriate for such classifications and, in any event, that
the employees expected free transportation on top of the
benefits conferred by the January 2 agreement. At about
this point, Kelly declared that the company wanted to get
out of the busing business because it was too costly." He
complained about the high salaries the company was
required to pay bus drivers and the high rate of insurance.
Kelly then called attention to the fact that one of the
buses had been involved in an accident and that two
pregnant women were passengers at the time.
The discussion then turned to matters more directly in
issue here . Kelly offered to sell the Union....of the buses''
the company had an option to buy for the sum of $1,000
and suggested that the Union assume the task of
transporting the employees to and from work. The offer
was rejected. Kelly then proposed to sell one bus for $1.
This proposal was also rejected with a comment from Di
Coio that the Union was not going into the busing
business. Finally, Kelly offered to sell two buses for $2,
this time suggesting that the Union sell the buses and
divide the proceeds among the affected employees. Like
the previous offers, this too was rejected. At this juncture,
the union committee withdrew from the conference room
and caucused. When it returned, Di Coio announced that
the Union was prepared to settle the bus and travel
allowance issue on the basis of a payment of $500 to each
affected employee." According to Morris, the words used
were "$500 with no strings attached." Shields recalled
them to be "$500 flat rate, no atrings attached,
settlement"; Gilbert, "flat $500 to all employees involved
no strings attached"; and Kelly, "flat $500 to be paid to
each affected employee." In any event, Di Coio went on
to say that the proposed settlement offered the company a
way out of the busing business. Kelly's initial response to
the proposal was that it was totally unrealistic and
unreasonable. He tempered his remarks somewhat by
stating that, if there was any reasonable basis for a
monetary settlement, it would be to assume that all
employees were moving their household to Paramus and,
thus, all were entitled to the $275 moving subsidy
provided by paragraph 3 of the June 27 agreement.
Attempts to get the Union to agree to the $275 counter
offer were to no avail. At one point, Kelly asked whether
employees who had already received the $275 moving
allowance would also collect the $500 payment but there
was no response to the question. After it became clear to
Kelly that the Union would not reduce the $500 figure, he
left the room and conferred with his superiors. When
Kelly returned, he announced that "the Company was in
the position to favorably consider this kind of settlement."
However, fearful of a general exodus of employees if the
amount was paid in a lump sum, Kelly suggested that the
payments be stretched over a period of 10 months in equal
installments. The suggestion was rejected and Kelly
reduced the period to 5 months. This suggestion was also
rejected but before the rejection, the Union raised a
question, not resolved during the meeting, whether an
employee who quit between payments would receive a pro
rata amount of the next payment. Finally, Kelly proposed
to pay each affected employee $250 on May 1 and a like
sum on June 1. Di Coio countered with a proposal that
the said amounts be paid April 1 and May 1 and that bus
service be continued until June 1. Kelly testified that he
was inclined to accept the April 1 and May 1 dates but
did not remember agreeing to them. Gilbert recalled that
Kelly agreed to these dates but stated that he wanted bus
service to stop March 31. The testimony is not in conflict
as it appears from a composite reading of the evidence
that Kelly agreed to the April 1 and May 1 dates with
reservation, it being a final resolution of the date when
bus service would terminate.
As the meeting was about to close Di Coio announced,
according to the credited testimony of Kelly, that the
committee had to take "it"" to the membership, requested
permission to use the cafeteria the next day for the
purpose of holding a membership meeting and also
requested permission for the stewards to circulate and
advise the employees about the meeting. Kelly agreed to
the requests but suggested that the parties get together
before the meeting because a few matters remained to be
resolved on the busing problem and, in addition, stated
that he wanted to take up the matter of pro rata vacation
pay. The meeting adjourned about 4:45 p.m.
Di Coio remained in the conference room with his
committee and Kelly and Gilbert returned to Kelly's
office. A few minutes later, Di Coio and the committee
appeared in the office. Kelly was on the telephone at the
time awaiting the completion of a long distance call. It
was generally agreed that Di Coio's remarks to Kelly were
initiated by words to the effect that the committee wants
to make sure the $500 payment is without taxes. There is
also no dispute that this was the first time the question of
taxes was raised by anyone in all of the discussions
conducted on March 14. There is, however, a serious
conflict of testimony as to Kelly's response. According to
Morris Di Coio told Kelly, "we want to make sure, John,
that this is without deduction of taxes" and Kelly, replied,
"Sure John it can be arranged. It's no problem. Consider
"The projected annual cost of the program was about $75,000
"The estimated value of the two buses was about $17,000.
"The $500 figure was a rough projection of the amount the company
would have paid at the end of a year to each employee who had used his
automobile to commute to work
"The terms "no stnngs attached," "flat rate," and "flat," as used here,
were not clearly defined or explained Morris testified that the Union's
rejection of Kelly's 10-month proposal , discussed below, was prompted by
its belief that he was "attaching strings " According to Kelly, Di Coto used
the term to mean that an employee could quit after collecting all monies
due him under the settlement without interference from the company. No
attempt was made to explain the meaning of "flat rate" or "flat." It is
clear, therefore, that neither precision of meaning nor accuracy of usage is
to be found in the application of these terms.
"Not explained by Kelly or any of the other witnesses
PHILIPS BROADCAST EQUIPMENT CORP.
it binding ." Di Coio also requested and received
permission from Kelly, again according to Morris, to use
the cafeteria the next day and for the stewards to circulate
among the employees and tell them about the agreement.
Shields' version of the conversation was that Di Coio said,
"Now, John we have got a deal , 250 flat, no tax coming
out, the first of May and the same coming out the first of
June. I want permission to tell my stewards this, circulate
to the people - " Kelly replied, "No problem, no
problem Tony," and agreed that the Union could use the
cafeteria the next day for the purpose of holding a
meeting.
Respondent's witnesses tell a different story. According
to Kelly, corroborated by Gilbert in basic essentials, his
response to Di Coio's statement that taxes not be withheld
was that he was not a tax expert but would look into the
matter and let Di Coio know. Di Coio asked when, Kelly
said the next day and reminded Di Coio that he had a
ground breaking ceremony to attend and would be late for
the meeting.
The Respondent' s witnesses , whose testimony I credit,
impressed me as testifying carefully, with a high regard
for the truth and with considerable corroborative detail.
In contrast, I found Morris and Shields less than fully
believable. In addition to the matter of demeanor, I note
the following: (1) Morris testified that his affidavit to a
Board agent, given September 4 or 13 days before the
opening of the hearing, contains no reference to an
agreement by Kelly to pay $500 without tax deductions
and, when pressed for a reason why a material fact was
not included, Morris stated that it was in the babk of his
mind but he did not think it was important. The
explanation strikes me as incredible for if Kelly had said
what Morris testified he said it seems highly unlikely that
Morris, the General Counsel's main witness, would not
have considered the statement important enough to have
incorporated it in his affidavit. Further, I note that the
significance of Kelly's alleged remark laid dormant in
Morris' mind for at least 5 months (between the date of
the filing of the charge and the date of his affidavit) and
loomed in importance only about 13 days before the
hearing. (2) Shield's account of the Di Coio-Kelly
conversation was at odds with that of Morris, significantly
in the omission of certain particulars reported by Morrir.
Unlike Morris, Shields did not testify that Kelly said the
withholding of taxes could be "arranged" and that Di
Coio could "consider it binding." Further, Shields'
statement that permission to use the cafeteria was given in
Kelly's office conflicts with a statement by Morris in his
affidavit that permission was sought and granted in the
conference room. (3) It is unreasonable to believe that,
while on the telephone, a seasoned negotiator like Kelly
would agree, without reflection, to a proposal which he
must have known would commit his employer to the
expenditure of funds beyond the amount vhich he (Kelly)
had been authorized to spend only an hour or so previous.
(4) It was generally agreed that the Union sought the
earlier payment dates of April I and May 1, the
Respondent the May 1 and June I dates. Howevdr,
according to Shields, Di Coio used the May I and June 1
dates in his statements in Kelly's office - dates which the
company had proposed and the Union had rejected. The
same confusion appears in the testimony of Morris. (5)
On the broader question of the general reliability of the
testimony of Morris and Shields , it is propel and pertinent
to observe other contradictions. Morris testified that
Gilbert was present at the meetings of January 2 and 17
and Shields testified that Gilbert attended the January 29
945
meeting . In point of fact, Gilbert did not attend any of
these meetings as his employment with Respondents did
not commence until February 19 and the first bargaining
session he attended was the one held on March 14. The
evidence is relevant not as proof of deliberate attempts to
falsify testimony but of faulty memories and of an
apparent inability to remember and recount events with
any degree of accuracy. In view of the foregoing, as well
as demeanor, I regard Morris' and Shields' testimony as
generally unworthy of reliability, and credit it only when it
conforms with credited testimony, or constitutes an
admission against the Union's interest.
In sum , I find that, at the end of all discussions on
March 14, the parties had agreed to a $500 payment to
each employee affected by the June 27 agreement.
However, I also find that, at the conclusion of all
deliberations that day, there were issues still to be resolved
and left open by the parties for future discussions, i.e., (1)
the date when bus service would terminate; (2) payment
dates - Kelly had expressed tentative approval of the
Union's proposed dates of April 1 and May I but reserved
final commitment on them; (3) pro rata pay for employees
who quit between payments; and (4) whether employees
who had received or were entitled to receive the $275
moving subsidy under the June 27 agreement would also
receive the $500 payment.
2. The events and meeting of March 15
At the beginning of the work day on March 15, Morris
and Shields told the employees about the alleged
agreement and the meeting to be held in the cafeteria later
that day. Sometime thereafter, two employees approached
Gilbert and inquired about a report that employees who
used the bus were to receive $500. Gilbert replied that
there was nothing definite about it.
All participants in the March 14 discussions were
present at this meeting except that the Union's committee
was augmented by the appearance of Henry E. Kaltun, its
business manager , and the company's representation
reduced to Kelly only as Gilbert was engaged in a
telephone conversation which lasted about I hour.
At the beginning, Kelly announced that the company
would not apply a pro rata formula to the $500 payment
and employees who quit after the first payment would not
receive any part of the second. He also advised the Union
his tax people had told him that the company is required
by law to withhold taxes from the $500 payment. Di Coio
complained bitterly stating that the word and phrase,
"flat," "no strings attached" meant no tax deductions.
According to Shields, Di Coio said , "we made a deal for
$500, no strings, no taxes." Kelly's response, in this
instance corroborated by Shields, was that the word "tax"
was not used in the conference room on March 14. Kelly
also stated that he did not understand the word and
phrase "flat," "no strings attached" to mean payment
without taxes. Di Coio then observed, according to
Shields, that taxes had not been deducted from travel
allowance payments, to which Kelly replied that the $500
payment was a larger sum and in a different category.
About this time , the committee caucused and Di Coio
called Stephen C. Vladeck, the Union's attorney. When
the committee returned to the conference room, Di Coio
told Kelly he had been advised by his attorney that the
company was required to withhold taxes from the
payment. Di Coio then suggested an alternative and it was
that the company pay more money and absorb the taxes.
At one point, Kelly testified, corroborated by Shields, that
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he refused and insisted taxes had to be withheld; at
another, that he told Di Coio he would let him know next
week - and, when Di Coio said he would not be available,
promised to inform Kaltun . In any event , it is clear that
Kelly did not accept Di Coio's alternative.
According to Kelly, Di Coio responded to Kelly's
refusal and/or promise by saying that if the company
could not absorb the taxes he would withdraw the offer.
At this juncture , Kelly left the room and when he
returned, according to Business Manager Kaltun , declared
that the company's position had not changed and that
taxes would still be withheld. Kelly then reviewed the
history of the bus service and travel allowance programs.
After the recitation, according to Kelly's credited
testimony supported by his notes prepared at the time of
the events reported therein, Di Coio slapped his hand on
the table and exclaimed : "The Union withdraws the offer.
We are going to the lawyers. We will take it to the court
or wherever , to insure or to make sure that the company
continues the buses and the travel allowances to the end of
the contract." Gilbert credibly recounted a conversation
with Morris outside the hearing room at which time
Morris said Di Coio got excited and "pulled it off the
table."" Near the end of the meeting, the parties turned
to a discussion of pro rata vacation , an unrelated matter,
and shortly after this , the meeting adjourned.
By letter dated March 20, Attorney Vladeck advised
the Respondent that the Union was commencing
arbitration proceedings under the January 2 agreement
with respect to, inter alia, "the Company 's violation of the
agreement and letter agreement by terminating bus service
and travel , to be effective March 31, 1967"" and invited
Kelly or his representative to a meeting, within 5 days, for
the purpose of selecting an arbitrator . Attorney Gartner
responded for the company on March 21 stating that, in
his judgment , the termination of bus service and travel
allowances was not an arbitrable issue and requesting an
early meeting . Nothing further has been done about the
proposed arbitration.
3. The meeting of March 28
The March 28 meeting , held in Attorney Gartner's
office, was attended by the principals and their attorneys.21
"Kelly also testified about a telephone conversation with William List,
president of Lodge 1709, IAM , in which Lise acknowledged that Di Coio
had told him (Lise) that he (Di Coio) had withdrawn the offer. Morris
flatly denied that Di,Coio withdrew the offer on March 15 and denied that
he told Gilbert Di Cdio "pulled it off the table ." Lise, called by the
General Counsel, denied having told Kelly that Di Coto admitted
withdrawing the offer. In-elaboration of his denials , Morris said that it was
really Kelly who had taken the offer off the table . However, Morris later
testified that, aftei Kelly returned to the conference room on March 15,
Kelly decldred that he had been unable to reach his supervisors but was
quite certain the offer still stood . In light of this self contradictory
testimony and demeanor, I do not regard Morris' denials of the credited
testimony of Kelly and Gilbert as reliable and I do not credit them.
There is evidence in the record that the relationship between Lise and
Kelly was not amicable . List admitted that he did not have a friendly
feeling towards Kelly and reluctantly acknowledge that he had complained
about Kelly's treatment of him . Further, his denial of Kelly ' s testimony
about Di Coio having withdrawn the offer was given in response to leading
questions . In view of the foregoing, including his hostility and difficulty in
remembering conversations and events without assistance from counsel, I
do not credit Lise's-denial . Nor do I accept Kelly's hearsay testimony
concerning what Use told Kelly about an alleged conversation between Di
Colo and Lise. _
"The date is an 6bvious error as the event referred to occurred in 1968.
"The proceedings are reported in a stipulation in evidence.
At this meeting, Attorney Vladeck pressed the Union's
position that the company had reneged on its promise to
pay each affected employee $500 in lieu of bus service and
travel allowance and stated that, if the problem was
simply a matter of withholding taxes, it could be resolved.
Gartner denied that there was an agreement to pay $500
with or without taxes and, at the same time, expressed a
desire to discuss what obligations, if any, the company
had under the June 27th agreement. Gartner then invited
discussion on the question of the company's obligation to
bargain or on the Union's position regarding the
arbitrability of the busing and travel issue . Vladeck replied
that he was not prepared to discuss the Union's legal
theories or remedies and would meet this obligation only
if the discussions relative to the $500 payment proved
unsuccessful. Vladeck then said that he would not reopen
negotiations with regard to the $500 payment as he
believed the issue had been resolved and the Union's only
reason for requesting the meeting was to settle what it
considered a mutual problem, namely, taxes. The meeting
ended on this note of discord but, prior thereto, Gartner
announced that the company would continue to operate
one bus after March 31 for a limited period. Vladeck
replied that he was not agreeing to an extension of service.
D. Analysis and Concluding Findings
As related in the introductory subsection above, the
General Counsel would predicate a finding of a Section
8(a)(5) violation and a derivative Section 8(a)(1) as well
upon two counts (1) that the Respondent reneged on a
final settlement agreement with the Union to pay each
affected employee a net sum of $500 in lieu of free bus
transportation, refused to execute a written agreement
containing the terms of the said agreement and thereafter
informed the Union that it had no further obligation on
the subject; and (2) that the Respondent unilaterally
terminated free bus service and transportation allowances.
Respondent, on the other hand, contends in its brief
that (1) there was no final agreement on all basic items
and, even as to the single item on which a tentative
agreement had been reached namely, the payment of $500
to each affected employee, there was no final agreement
as to it because the Union sought to expand the payment
to $600 and (2) free bus service was terminated pursuant
to the terms of the June 27 agreement after attempt to
arrive at an amicable settlement with the Union for the
continuation of the service proved unsuccessful.
It appears without dispute that at the end of the
meeting in the conference room on March 14, Respondent
agreed to pay each affected employee $500. The Trial
Examiner understands the General Counsel's position to
be that the word "net," as it appears in the complaint21
and the phrases and word, "no strings attached," "flat
rate," and "flat ," as used during the hearing , meant that
the $500 would be paid without deduction of taxes. It is
undisputed, however, that the subject of taxes was not
mentioned at any time during the deliberations in the
conference room on March 14. Kelly credibly testified
that he did not understand the expressions referred to
above to mean that the $500 payments were to be made
without tax deductions. Indeed, the various explanations
"Business manager Kaltun testified that Di Coio told Kelly that he
(Kelly) had agreed the day before to pay $500 net. Kaltun was not present
at the March 14 meeting and none of the witnesses in attendance that day
testified to the use of the word net by anyone. Accordingly, I do not accept
this testimony of Kaltun.
PHILIPS BROADCAST EQUIPMENT CORP.
offered by General Counsel 's witnesses demonstrated
clearly that whatever meaning they ascribed to the phrases
and words did not comprehend the matter of taxes.
Realizing belatedly that taxes had not been discussed in
the conference room , Di Coio and his committee went to
Kelly's office about 5 minutes later where Di Coio told
Kelly taxes were not to be deducted . Kelly's response,
which I have credited , was simply that he was not a tax
expert but look into the matter and let the Union know.
Di Coio' s statement that taxes were not to be withheld
was an attempt by the Union to add a new term not
previously agreed to by Kelly and constituted a new
proposal. And, Kelly's announcement the next day that
the company was required by law to withhold taxes,
confirmed a few minutes later by Di Coio 's own attorney,
was a rejection of that proposal. Undaunted, Di Coio
made still another new proposal and it was that the
company absorb the taxes by paying more money.
Respondent estimated that using the lowest tax bracket of
20 percent the additional cost of this undertaking would
be about $100 above the $500 figure, per affected
employee . There is no evidence that Kelly ever accepted
this proposal or signified his approval of it. Finally,
according to the credited testimony of Kelly, Di Coio
withdrew his offer. I conclude , therefore, that the
Respondent did not agree to pay $500 to each affected
employee without tax deductions and did not agree to
absorb the taxes on such payments.
However, assuming a definite understanding on a fixed
sum with proper allowances for taxes, there was, in my
judgment , no final agreement for the reason that several
crucial issues still remained to be resolved. Manifestly,
Respondent sought- something in exchange for the
payments as obviously -they were not gifts . What was
sought and what the Respondent bargained for, as a
consideration for the payments , was some relief from the
requirement to provide free transportation . Gilbert
credibly testified that Kelly-wanted the buses to stop
March 31, or the day before the first payment date under
the Union's proposal, but that Di Coio wanted the service
to continue until June 1. Clearly, there was no final
agreement on the vital issue of when bus service would
terminate . Other crucial issues left opened and unresolved
were the payment dates, whether employees who quit
between payments - would receive a pro rata amount of the
next payment and whether employees who had already
received or were entitled to receive the $275 moving
subsidy were also entitled to' the settlement payment.
Thus , even if there had been an agreement on the single
item of the amount of the payment , there still was no firm
and final agreement on all remaining items. In view of the
foregoing considerations and the record as a whole, I am
persuaded and find that the General Counsel has failed to
prove , by a preponderance of the credible evidence, that
the terms of an agreement were ever finalized between the
parties .'* And, as the Union had withdrawn its assent to
the tentative agreement to pay each affected employee
$500, Respondent was relieved of any obligation it might
have had to abide by its terms . 23 Accordingly, I shall
recommend - dismissal of the allegation of the complaint
here under consideration . It follows, and I find, that
"See Greer Stop Nut Company, A Division of Kaynar Manufacturing
Co., Inc.. 162 NLRB No. 47.
"See Celanese Corporation of America, 95 NLRB 664, fn . 1, (C.A. 5)
distinguish , San Antonio Machine & Supply Corp., 147 NLRB 1112, enfd.
363 F.2d 633 , where the employer 's repudiation was not prompted by the
Union's prior withdrawal but was precipitous and without reason.
947
Respondent did not violate the Act by refusing to sign an
agreement containing the terms allegedly agreed to on
March 14.24
That brings me to the unilateral action count. Free bus
service and travel allowances payments were established
by mutual agreement of the Respondent and the Union.
The importance of the programs to the employees
themselves is amply demonstrated by the fact that, of
about 76 affected employees, 35 were reimbursed by the
company for the use of their automobiles on various dates
between June 1967 and April 19 and by the further fact
that, in the period from March 28 to April 19, about 31
were passengers , on one or more occasions , in buses
provided by the company. The programs were beneficial
to the company as well as employees, who were thereby
encouraged to transfer to Paramus, provided the company
with a nucleus of trained personnel at the new location. I
find, therefore, that bus service and travel allowances were
existing terms and perquisites of employment and, clearly
fell within the meaning of "wages" and "conditions of
employment," as used in Section 9(a) of the Act.
Respondent was thus under a statutory obligation to
bargain with the Union concerning any changes it desired
to effect in these benefits.25 It is true, of course, that on
January 10 only bus service was up for review under
paragraph 1(a) of the June 27 agreement. Travel
allowances came to an end "six months after the date of
transfer of an employee" under paragraph three thereof.
Since a few transfers were made in September,
theoretically at least, these benefits could have continued
for some until as late as March. It is unnecessary to
speculate, however, as to the number of employees who
were entitled to travel allowance in March under the June
27 agreement because Respondent by voluntary action
extended the life of bus service on several occasions
between January 10 and April 19 and with each extension
continued to pay travel allowances . Accordingly, I find
that bus service and travel allowances were bargainable
subjects until terminated on April 19.26
The Respondent does not dispute the claim that it did
not consult with the Union regarding its decision to
discontinue bus service and travel allowances and
regarding the effects of such decision upon the unit
employees. The record supports the claim.27 The failure of
Respondent to have notified the Union, prior to the
institution of unilateral action , was unlawful unless
excused by some special circumstance.
By way of defense, Respondent argues that by entering
into the June 27 and January 2 agreements, the Union
waived its rights to negotiate with respect to bus service
and travel allowances except in accordance with the June
27th agreement. I find the argument wanting in substance.
The Board 's rule on waiver of statutory bargaining rights
is unambiguous . For many years, the Board and the
Courts have held that they will not readily infer a waiver
and, for a waiver to be effective, it must appear in "clear
"Actually, the alleged agreement was never reduced to writing and
presented to the Respondent for signature . This finding , however, renders
moot the contention that Respondent's repudiation was an anticipatory
refusal to sign that made unnecessary the reduction of the agreement to
writing.
"Respondent does not dispute that bus service and travel allowances
represent mandatory subjects of bargaining.
"See, e.g., N.L.R.B v. Niles-Bement-Pond Company. 199 F.2d 713
(C.A. 2); The American Lubricants Company, 136 NLRB 946;
Weyerhaeuser Timber Company, 87 NLRB 672.
"The pertinent evidence appears in the testimony of Kelly as follows:
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and unequivocal language" in the contract," or "expressed
at the bargaining table before the contract was signed.i"
And, even when a matter was discussed during
negotiations, a waiver will not be found unless the
evidence clearly shows a "conscious relinquishment" by
the Union "of its bargaining nghts.s30 The record here
clearly discloses that throughout the negotiations which
preceded execution of the January 2 agreement, and
indeed even on the date of execution, the Union sought,
without success, to discuss the subjects of bus service and
travel allowances. It is evident, and I find, that the Union
did not at any time material, waive its rights to negotiate
with the company with regard to bus service and travel
allowances.
Secondly, Respondent earnestly argues that bus service
and travel allowances were temporary measures; that they
came to an end on January 10, pursuant to the terms of
the June 27th agreement; and, when the Union withdrew
its offer on March 15, Respondent was relieved of any
remaining obligation it might have had under the said
agreement. The argument is devoid of merit. The precise
question is whether Respondent has fulfilled its statutory
duty to bargain with the Union in good faith, not whether
it has discharged obligations to the Union under the terms
of a contract." Thus, Respondent's reliance upon
principles of contract law as justification for its unilateral
action is misplaced. As noted above, bus service and travel
allowances were bargainable subjects at the time they were
terminated; the former under paragraph 1(a) of the June
27th agreement and by voluntary action of the
Respondent, the latter by voluntary action alone.
Accordingly, Respondent was required by statute to
bargain with the Union about these subjects before putting
into effect any changes with respect thereto.
Finally, I come to a contention advanced in the answer
to the complaint. It is that Respondent's unilateral action
was justified by the fact that the parties had reached a
bargaining impasse. During the hearing, however,
Attorney Gartner stated that "the word impasse there is
not used in the word of art sense that we are all familiar
with" and, in his brief filed after the close of the hearing,
there is no reference to an impasse. From all this, the
Trial Examiner assumes that the contention has been
withdrawn but, in the event the assumption is incorrect,
proceeds to consider it as originally raised.
There is no support in this record for the claim that
bargaining negotiations had progressed to an impasse
before Respondent unilaterally terminated bus service and
travel allowances. These subjects were discussed at three
of the five meetings held between January 17 and March
28. At the March 14 meeting, the Union proposed that
the employees pay 25 percent of the cost of bus service
and travel allowances and that the programs be extended
for the life of the January 2 agreement. And, as shown
above, it also proposed a monetary settlement at that
time. Clearly, the Union's attitude was one of conciliation
and compromise on the central issue not inflexibility and
intransigency. I find, therefore, that there was no impasse
between the parties as of April 19.
On the basis of all the foregoing and the record as a
whole, I conclude and find that, by unilaterally
discontinuing bus service and travel allowances without
prior consultation with the Union, Respondent failed to
bargain with the Union in good faith in violation of
Section 8(a)(5) and, by this activity, interfered with the
rights of its employees under Section 7 in violation of
Section 8(a)(1).32
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and, to the extent that they have been
found unfair labor practices, tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
IV THE REMEDY
Q. (By Mr Kobel) Did the Company request that the Union bargain
with the Company on - as to the date when bussing and travel
allowance would stop9
Mr. Gartner At what time9
Q. Between March 15 and April 19.
A. No
Q. Did the Company request the Union to bargain with it as to the
effects of the stoppage of bussing and travel allowances on the
employees in that period of time?
A. Nope
Q. Did the Company at all communicate with the Union other than
the March 28th meeting in Gartner's office as to the bussing and travel
allowances?
A. We advised them that we would continue the bus
Q. Other than the advice that it would continue and stop, was there
any other communication with the Union as to bussing and travel
allowances9
A Between the period of March 15 and April 19.
Q Exclusive of the March 28th encounter in Mr . Gartner' s office.
A No
"See California Portland Cement Company, 101 NLRB 1436, 1439;
Otis Elevator Co, 102 NLRB 770, enfd as modified 208 F 2d 176 (C A
2)
"See Perkins Machine Company, 141 NLRB 98, and cases cited therein,
enfd 326 F 2d 488 (C.A. 1).
"See Perkins Machine , supra at 179.
" See Shannon & Simpson Casket Company, 99 NLRB 430, 463, enfd.
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act by unilaterally effecting changes
in its employees' terms and conditions of employment
without consulting or bargaining with their designated
bargaining agent, I shall recommend that it be ordered to
cease and desist from engaging in such conduct and from
like or related conduct.
There remains to be considered the nature of the
affirmative remedy to be ordered. The General Counsel
requests that the Respondent be directed (1) to reinstate
the bus service and travel allowances programs (2) to
make the affected employees in the bargaining unit whole
for any losses they sustained as a result of the unlawful
action; and (3) to require the Respondent, should it still
desire to discontinue bus service and travel allowances
following their restoration, to bargain in good faith with
the Union concerning this matter.
Where as here established employee benefits are
changed unilaterally, it is the policy of the Board to order
208 F 2d 545 (C.A 9).
"See Southland Paper Mills, Inc , 161 NLRB 1077; N.L.R B v. Katz,
369 U S. 736; see also Beacon Journal Publishing Co., 173 NLRB No
181, New Orleans Board of Trade, Ltd., 152 NLRB 1258
{
PHILIPS BROADCAST EQUIPMENT CORP.
the Respondent to restore the status quo ante." However,
reinstitution of benefits is not an automatic or inflexible
remedy and, at times, must be tempered by practical
considerations. In fashioning a remedy, I have taken into
account the fact that bus service and travel allowances
were temporary measures and that the company did not
own the buses but rented them with an option to buy. Of
significance, too, is the further fact that the parties have
enjoyed a history, albeit of short duration, of harmonious
relations evidenced by a 3-year bargaining agreement
reached as the result of good faith bargaining. Finally,
there is no record of any unfair labor practices or serious
dispute other than the one growing out of the isolated
action here involved.
Under all the circumstances, I think the policies of the
Act can be effectuated by giving Respondent a choice of
one of two options as follows:
(a) If Respondent still has available to it the use of the
buses which it formerly utilized to provide transportation
pursuant to the June 27 agreement, Respondent may, if it
so desires, reinstate the busing program and provide
transportation service for its employees from Mount
Vernon to Paramus. Once reinstated, Respondent will
continue the said program until such time as it and the
Union, through negotiations, reach an understanding
concerning the discontinuance of bus service and travel
allowances or a bona fide impasse. Should the Respondent
select this option, then it is ordered to make the affected
employees in the bargaining unit whole for any losses they
sustained as a result of Respondent's unlawful action by
payment to them of a sum of money equal to that which
they have had to pay to secure alternative means of
transportation from the date the bus service was
unilaterally discontinued to the date the service is
reinstated plus interest at the rate of six per cent per
annum. Isis Plumbing & Heating Co., 138 NLRB 716.
(b) If the buses are not available to the Respondent or
if it is impracticable to secure them, then Respondent is
ordered to make the affected employees in the bargaining
unit whole for any losses they sustained as a result of
Respondent's unlawful action by payment to them of a
sum of money equal to that which they have had to pay to
949
secure alternative means of transportation for the period
beginning on the date the bus service was unilaterally
discontinued and continuing until such time as the parties
in their subsequent negotiations reach an amicable
adjustment concerning the discontinuance of bus service
and travel allowances or a bona fide impasse. Such
payments will also include interest at the rate of six per
cent per annum. Isis Plumbing & Heating Co., supra.
Under either of the above options, Respondent is
ordered to pay travel allowances as well to employees who
used their automobiles to commute to work from Mount
Vernon, in the manner and to the extent set forth above.
Upon the basis of the foregoing findings of fact, and on
the entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. The 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. The employee unit set forth in section II, A, above,
of this Decision, is a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid unit within the meaning of Section 9(a) of the
Act.
5. By unilaterally discontinuing the employee bus
service and travel allowances without prior notice to, or
consultation or bargaining with, the Union, Respondent
has engaged 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 within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
"Southland Paper Mills, Inc., supra at 1078. See also Beacon Journal
Publishing Co., supra; cf. New Orleans Board of Trade, Lid., supra.
I