Tucker Steel Corp.

TUCKER STEEL CORP., AND STEEL SUPPLY CO. 323 The two statements may have been made while the parties were talking of matters completely unrelated to negotiations or collective bargaining . This record is com- pletely devoid of any showing that Local 600 was ever informed by Bay City that Willis C. Darby, Jr., was anything more than Bay City's "mouthpiece" in the in- junction suit. There is no affirmative evidence to show that Bay City ever informed Local 600 that Darby had been appointed its representative in matters of collective bargaining and negotiations or was anything more than its attorney in the injunc- tion suit. As for settling the injunction suit, that was a matter to be discussed be- tween the attorney for Local 600 and the attorney for Bay City . Nor is there any proof that Bay City made any request that Local 600 bargain with Darby as the Bay City representative in any matter of collective bargaining or negotiations. This finding is corroborated by the fact that at no time did Bay City ever attempt to invoke article X of its contract for the handling of grievances and arbitration of disputes. Instead, Bay City chose to attempt to create an unfair labor practice case. The Trial Examiner must find that this attempt did not succeed. Accordingly, the Trial Examiner must find that the General Counsel has failed to prove facts sufficient to prove the commission of any violation of Section 8 (b) (1) (B) and (3 ) of the Act, or, in fact, any violation of the Act by Respondent Local 600 and, accordingly, he will recommend that this complaint be dismissed in toto. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Association of Bridge, Structural and Ornamental Ironworkers, Local 600, is a labor organization within the meaning of Section 2(5) of the Act. 2. Bay City Erection Company, Inc., is engaged in commerce within the mean- ing of Section 2(7) of the Act. 3. Respondent Local 600 has not engaged in any unfair labor practices within the meaning of the Act. Accordingly, the Trial Examiner recommends that the complaint in the instant matter be dismissed in its entirety. Tucker Steel Corporation, and Steel Supply Company and Shop- men's Local Union No. 715, of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO. Case No. 10-CA-4666. November 16, 1961 DECISION AND ORDER On July 11, 1961, Trial Examiner Ramey Donovan issued his Inter- mediate Report in the above-entitled proceeding, finding 'that the Respondent 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 Intermediate Report attached hereto. Thereafter, the Respondent filed a brief in support of the Intermediate Report and the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Intermediate Report, the exceptions and, 134 NLRB No 37. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD briefs, and the entire record in this case, and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner:" ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Tucker Steel Corporation, and Steel Supply Company, Knoxville, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Shopmen's Local Union No. 715,-of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the exclusive representa- tive of all its employees in the appropriate unit with respect to Christ- mas bonuses. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist, Shopmen's Local Union No. 715, of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual' aid or protection, or to refrain from any or all of such activities.2 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Shopmen's Local Union No. 715, of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the exclusive representative of all the employees in the aforesaid unit with respect to Christmas bonuses, and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Post at its plant in Knoxville, Tennessee, copies of the notice attached to the Intermediate Report marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by an authorized representative 'In view of the Respondent 's acquiescence in the Intermediate Report , we adopt it pro forma 2 As Tennessee has a right-to -work law, we shall delete from the Trial Examiner's Recommended Order the proviso "except to the extent that such right may be affected by an agreement in conformity with Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959." 3 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." TUCKER STEEL CORP., AND STEEL SUPPLY CO. 325 of Respondent, be posted immediately upon receipt-thereof, and be maintained by it 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 said notices are not altered, defaced, or covered by any other material. (u) Notify the Regional Director, for the Tenth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. INTERMEDIATE REPORT STATEMENT OF THE CASE This case was heard in Knoxville, Tennessee, on May 16, 1961, upon a complaint filed by the General Counsel and answer filed by Tucker Steel Corporation, and Steel Supply Company, herein called Respondent. The complaint alleged that on or about December 6, 1960, Respondent unilaterally discontinued payment of a Christmas bonus to its employees and on or about January 10, 1961, and at all times thereafter, Respondent •refused to bargain collectively with the Union, the collective-bargaining representative of the employees in an appropriate unit, regard- ing the discontinuance of the Christmas bonus. Respondent's answer denied the commission of unfair labor practices. All parties participated fully in the hearing and were represented by counsel. Oral argument was made at the conclusion of the hearing and able briefs were filed by counsel for the General Counsel and by Respondent. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY Respondent is a Tennessee corporation that maintains its principal place of business at Knoxville, Tennessee, where it is engaged in manufacture and fabrication of structural steel and building products. During the past 12 months, a represent- ative period, Respondent sold and' shipped finished products valued in excess of $50,000, from its Knoxville plant directly to points outside the State of Tennessee. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. If. THE LABOR ORGANIZATION Shopmen's Local Union No. 715, of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The pre-1960 bargaining history Respondent has been in business since 1946. Annually, at Christmas time, the Company has held a Christmas party for its employees and their wives. Beginning in 1947 Respondent's president, Tucker, presented a cash Christmas bonus to the employees at the party. Throughout the years Tucker presented the bonus in the fprm of a check to the wives of the employees. The check was apparently made out to the wife and if she was not present it was given to her husband for trans- mission . Unmarried employees received their own checks. Tucker, in presenting the checks each year, made a short speech in which he described the bonus as a gift from the Company to the wives and that it was their salary or gift for getting the men to work on time during the year. The amount of the bonuses was fixed arbitrarily by Tucker, with the help of Kesley, secretary-treasurer and general manager of Respondent. They simply sat down with the payroll list and gave round sums, such as $50, $75, or $100 to individual employees, based on their inclination or estimate of the employee. If an employee was absent for a period of time due to illness, Tucker and •Kesley 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determined whether or not to give him a bonus, exercising their individual dis- cretion in the matter. In 1956 Respondent determined that the method of fixing individual bonuses was too time consuming , so, beginning that year and until 1960, bonuses were given on the basis of 1 week's salary for each employee. Kesley testified credibly that as a result the majority of the employees received less in 1956 than they had received in 1955. The witness gave some specific examples of this, including an individual whom Kesley identified as a union steward at the time who took a cut from $100 to $75. All the foregoing practices continued unchanged after the advent of the Union in 1948 as the collective-bargaining agent of the employees . Both before and after 1948 employees other than those in the bargaining unit as well as those in the unit participated in the party and the bonus. Neither individual employees nor the Union ever raised any question concerning the bonus on any score, including the amounts or method of determination . The Union had not been consulted re- garding the 1956 change but raised no question thereon nor did individual employees. Rutherford, general organizer for the Union, who works out of its St Louis, Missouri, headquarters and who services Local 715 in Knoxville, including Re- spondent's plant, testified that he has negotiated approximately five contracts and four supplemental agreements with Respondent . Rutherford testified that his and the Union's relationship with Respondent has been "excellent" and on a most friendly basis. Kesley expressed substantially the same view from the standpoint of management, adding that there had never been any labor disputes or strikes. At no time during the contract negotiations over the years was the matter of Christmas bonus or Christmas party raised or discussed and none of the contracts made reference thereto B. The 1960 contract negotiations Some days prior to the commencement of negotiations in 1960 the Union, through Long, its chief shop steward at Respondent 's plant, had submitted a written copy of the Union's proposed contract to the Company. The first meeting between the Company and union representatives was held on November 21, 1960. Representing the Union were Rutherford and Long and Shop Stewards Wilkerson and Moore I The company representatives were Tucker, Kesley, O'Dell , superintendent of Tucker Steel, Carpenter, general foreman, Hale, manager of Steel Supply , and Wright, superintendent of Steel Supply. Rutherford testified on direct examination that the only mention of the Christmas bonus was at the inception of the first session on November 21 when the parties were stating their positions . The witness stated that Kesley began enumerating the high costs of the Respondent 's operation and asked Moore and Long if they knew what their actual earnings were and the costs involved. Kesley then listed what various items , such as social security, paid holidays , vacations, health and welfare, and Christmas bonus, cost the Company. On cross-examination Rutherford repeated his testimony that the sole mention of the Christmas bonus was by Kesley as afore- described . Respondent's counsel then asked the witness if he was sure that it was Kesley and not Tucker who had brought up the matter of Christmas bonus. Rutherford replied that Kesley mentioned it in detail and Tucker "almost verbatim" repeated "Mr. Kesley in substance." Later, the Trial Examiner asked the witness to describe in detail the statements of the various people at the November 21 ses- sion. The witness repeated in substance what Kesley had said, including Kesley's reference to items in the union proposal that were not prevalent among the majority of competing plants and Kesley's observation that the union proposal if adopted would place the Company in a precarious competitive position Chief Steward Long corroborates Rutherford that Kesley was the only one to mention the Christmas bonus during the bargaining sessions and this occurred on November 21 in the context described by Rutherford. Long said that in enumer- ating the various fringe benefits the employees were receiving, Kesley gave them the cost figures on these items Both Wilkerson and Moore, the shop stewards, also corroborate Rutherford . No comment was made by the union representatives at the meeting regarding Kesley's or Tucker's remarks. In evaluating the foregoing testimony of the union representatives in the light of the testimony of the company representatives who were present at the negotiations, it was noted that Long, Wilkerson, and Moore made no reference to any statement by Tucker. Rutherford referred to Tucker only on cross-examination when he 'Local 715 Is an amalgamated local that represents employee units at several com- panies in the area • The president of the local , Clemons , works at a plant other than Respondent's The union officials at Respondent's plant are the chief shop steward, Long, and two shop stewards. TUCKER STEEL CORP., AND STEEL SUPPLY CO. 327 was asked expressly about Tucker and even then passed over the matter by saying that Tucker reiterated Kesley's statements. The focus of the union testimony on Kesley may be in part attributable to the fact that Kesley was the chief company negotiator who was present at all the bargaining sessions as contrasted to President Tucker who was present during only the initial stage of the first session on No- vember 21. Be that as it may, I found the testimony of Kesley and Tucker, here- inafter described, to be credible and more accurate as to what transpired on No- vember 21 although on many aspects it is not in material disagreement with that of Rutherford and his committee. Kesley stated that on November 21 the parties went through the contract proposed by the Union indicating agreement on some items and marking others on which they would negotiate. When section 13 of the proposed contract, dealing with vacations, was reached Tucker made a statement.2 Tucker said he was not in favor of fringe benefits because the men did not realize what they cost the Company and did not even realize what they were. Kesley then asked Moore and Long what their fringe benefits were and how much they cost the Company. The men did not know and Kesley proceeded to read off a list he had written out. The list contained six items from hospital-surgical at a cost of $8,694 through holidays, vacations, unemployment insurances, social security, to coffee breaks, the latter at a cost of $15,960. When Kesley had finished reading the foregoing list Tucker told him that he had left off the Christmas bonus. Tucker then said, according to Kesley, "Boys, if we go along with the increased vacation schedule, we are going to cut out the Christmas bonus." Tucker's testimony is in substantial accord with that of Kesley. He testified that he Mold the men at the meeting that they had to consider that the Company was already giving a week more vacation than its competitors in the form of a bonus. of 1 week's salary; and that because of competition the Company would have to discontinue the bonus if it paid the increased vacations. There was no comment made by the union representatives regarding the foregoing In substantial corroboration of the testimony of Tucker and Kesley, Carpenter testified that Tucker told the men that he was already giving them an extra week's pay at Christmas and could not continue because of increased competition. O'Dell stated that Tucker said he would not pay an improved vacation schedule because he was already paying a week's pay at Christmas. Hale testified that Tucker told the men that if their demands were met the Company would be paying an extra week's pay because of its Christmas bonus and that he would have to withdraw the bonus. Toward the close of the hearing the General Counsel had recalled Rutherford as a rebuttal witness on another aspect of the case. When the witness had given his testimony he was asked whether he had any recollection of Tucker having said in substance at the first meeting that if the Union was going to secure a change in the vacation clause that he could not continue to give the bonus. Rutherford said, "I don't remember whether he said it in those exact words . it was if all of these original demands we had on fringe benefits were continued or they had to agree to them that it would put them in a position where they could not be competitive to the other organizations or the other competing plants. So that's the reason we backed off of many of our original proposals. .. Rutherford and the union committee testified that the Christmas bonus was not mentioned at any meeting other than the first session on November 21. Kesley testified that the subject was referred to at the end of the second meeting on Novem- ber 22. The witness stated that on that occasion, after he had gathered up his papers and Rutherford had gathered up his, Kesley was on his way out of the room and was passing Rutherford. Rutherford allegedly said to Kesley, "What about this Christmas bonus, don't you think we could spread it out into the contract?" and Kesley replied, "No, Jimmy, that's not negotiable at this time" and left the room. 2 Rutherford testified credibly that under contracts in effect at the inception of the November 21 bargaining, Respondent's employees received 1 week's vacation after 1 year, 2 weeks' vacation after 5 years, and 3 weeks after 15 years ; in other companies in the area with whom the Union had contracts, the vacation schedule was 1 year, 1 week- 3 years, 2 weeks-12 years, 3 weeks. Section 13 of the proposed 1960 contract for Respondent was 1 year, 1 week-3 years, 2 weeks-10 years, 3 weeks The contract as eventually adopted embodied the foregoing vacation proposal of the Union except that it provided 3 weeks' vacation after 12 years, instead of after 10 years The overall con- tract, according to Rutherford, made Respondent's contract comparable to some com- petitors' contracts but below others The contracts of Allied Steel, an immediate competi- tor, and of Respondent were comparable except that Allied paid merit increases which, resulted in a higher actual income to its employees. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hale, O'Dell, Wright, and Carpenter corroborate the foregoing testimony of Kesley. In his testimony Hale also stated that at.some point in the negotiations Rutherford had referred to the Christmas party but Kesley told him that was Tucker's affair and that Rutherford should see Tucker about it. Hale said that the reference to the bonus and to the party were separate matters. On cross-examination Wright was asked whether he recalled any mention of the Christmas party toward the end of the second meeting on November 22. The witness said he was not sure but that it'was "very easily possible" and then stated that he recalled that the party was mentioned but not the circumstances thereof. He finally said that it was his recollection that the party and the bonus were mentioned "in the same general area" although he might be mistaken. In the course of cross-examination on his initial testimony Rutherford said that during the course of negotiations the matter of the Christmas party did come up. He said that after they had adjourned on November 21 and were in the parking lot Steward Moore told him that the employees had discussed and favored abolishing the Christmas party. At this point they saw Superintendent O'Dell going to his car and they mentioned the possible abolition of the party to shim. O'Dell allegedly said that he was also in favor of doing away with the party. Thereafter, Rutherford testified he decided that the matter should be brought to management's attention in order "to smooth the situation" but not, apparently, as a formal bargaining demand. In the course of testifying, Rutherford said that at the adjournment of the Novem- ber 22 meeting he spoke to Kesley about the Christmas party and the possibility of abolishing it. Kesley said it was not negotiable. Rutherford then said he knew it was not negotiable but the Company incurred considerable expense because of the party and the employees really did not want it and why could not the Company do away with the party and add a penny to the wage rate and still save money. Kesley said that the party was Tucker's project and that it was not negotiable. The conflict in testimony as to whether Rutherford had raised the matter of Christmas party or Christmas bonus at the end of the November 22 meeting is apparent. For the most part the testimony on each side is of a positive nature and I have given careful consideration to the matter. I credit Rutherford's testimony on this point and I find that he did raise the matter of Christmas party on November 22 in the context he described. I believe he said Christmas party as distinct from Christmas bonus and that he made and intended the distinction deliberately. In a sense, "Christmas party" was a broad term that might well be mistaken to include the entire Christmas affair at Respondent's plant, including refreshments, games, and the bonus, all of which were part of the Christmas party but, as stated, I believe Rutherford referred to and said "party" rather than "bonus " In view of the findings previously made regarding Tucker's initial remarks about the bonus on November 21, one of the factors, in addition to personal appraisal of the witnesses, that I have considered in resolving the question of what was said at the subsequent meeting on November 22, is Rutherford as a person, insofar as I observed him and appraised him during the course of the hearing. He was a pro- fessional union negotiator of more than 10 years' experience. Rutherford impressed me as not only experienced in his field but as intelligent. In the light of Tucker's remarks about the bonus, it is my opinion that an experienced negotiator such as Rutherford could have either dealt with the bonus frontally and formally or could have remained silent thereon throughout the bargaining, as he in fact did, for rea- sons that I shall discuss in the section of this report entitled "Conclusions." 3 I do not believe that Rutherford would have raised the bonus issue at the end of a meeting more or less as an afterthought. Moreover, I fail to see what reason- able expectancy the Union had for believing, if it thought that the Company under certain conditions would be unwilling to pay the bonus as a Christmas bonus, would be willing to allocate the same amount of money to wages or other contract items. The cost to the Company would have been the same and it was competitive costs that had evoked Tucker's remarks about the bonus. Moreover, the bonus in the form of a Christmas check from the president of the Company to individual em- ployees and their wives undoubtedly was valuable to the Company from the standpoint of public relations or employer-employee relations. This factor would have been absent if the Company placed an equivalent sum in contract wages since then the paternalistic aspect would be lost or obscured. If it be said that notwith- standing the foregoing factors Rutherford may still have asked to have the bonus It is clear that the Union said nothing about the bonus on November 21. My finding is that it also said nothing on the subject at any subsequent meeting although Respondent contends, as we have seen, that Rutherford mentioned the bonus on the 22d. It is there- fore the Union's reasons for its silence that I shall discuss hereinafter. TUCKER STEEL CORP., AND STEEL SUPPLY CO. 329' spread into the contract, it is my view that the evidence in this case indicates the' contrary. Rutherford impressed me as a moderate, or, perhaps the phrase is, a business-type union representative. The admittedly excellent relationship between the parties for more than 10 years reflects this. Rutherford's 1960 contract pro- posal was moderate by general standards . Of course the Union did not attain everything it sought initially and it probably asked for more than it expected but there is no indication that Rutherford's general approach was to go all out and ask _ for the moon. The demands were such that they had a reasonable expectancy of" acceptance, for instance , 3 weeks' vacation after 10 years, whereas the ultimate agreement was for 3 weeks after 12 years, and a proposed one extra holiday which was not attained. In short, if Rutherford believed that the bonus was going to be or might be discontinued , his alleged proposal to incorporate the same sum in wages or other benefits was so illogical and so out of keeping with his general approach that I do not believe he made the statement attributed to him . The proposal would be, even more illogical if Rutherford believed that the Company was not going to discontinue the Christmas bonus. There is no apparent reason why the Union would. wish to disturb an agreeable status quo that had existed without question for many years and there was no reason for believing that the Company would wish to change, assuming the premise of the preceding sentence. The Christmas party, the food and beverages, with which apparently a majority of the employees wished to dispense, or at least the shop stewards so informed Ruther- ford, was a different proposition. Since alcoholic beverages were not served or tol- erated at the party, the cost of food and coffee or soft drinks was relatively modest, probably no more than $4 per person. In Respondent's Exhibit No 2, where Kesley computed the cost of fringe benefits, he apparently used the figure of 2,000 hours at $1.90 per hour average,-for 100 employees which was the approximate number of employees. If we take 100 employees times $4, the cost of the party is $400 or $800• allowing for wives. The bonus on the other hand, taking a figure of $76 as the average weekly wage (40 hours times $1.90), which is the figure appearing on Re- spondent's Exhibit No. 2, would amount to $7,600 for 100 employees . Rutherford made a "stab," I believe, about the Christmas party, as he testified, and he believed that the Company might agree to dispense with the party and allocate the savings, to the contract . He did -not press the matter. It is also to be noted that in a letter of January 31, 1961 , infra, replying to a union letter in which it had been denied that the bonus had been discussed in the contract negotiations, the Company referred to Tucker's statement on November 21 but made no illusion to any reference to the bonus on November 22. The final meeting between the parties was on November 28 when they arrived at an agreement. As previously indicated, the subject of Christmas bonus was not raised or discussed at this meeting and the contract is silent thereon . During the course of the November 21, 22, and 28 negotiations and, before November 28, Jenkins, a foreman, was talking with Tucker. Tucker told Jenkins what the Union was asking for in the contract and said to Jenkins that "the Company would give that but they could not afford to give that along with the so-called Christmas bonus and if they [the Union] wanted a revised or improved vacation system that he would be- forced to cut out this Christmas bonus. .. . Without any instructions on the matter Jenkins testified that thereafter he went to various employees and told them that the Company would not go along with the union demands and also continue the Christmas bonus. Jenkins testified that most of the men indicated that they pre- ferred to have the bonus. Wilkerson , a union steward at the time, testified that on November 21 or 22 Jenkins spoke to him and three other employees. According to Wilkerson, Jenkins said that management wanted to know which they would rather- have, 3 weeks' vacation at 10 years or the bonus . The men said that they preferred the bonus. Cronos, a union member, testified that in November Jenkins told him of the possibility of the bonus being eliminated if vacations were granted as requested by the Union. Cronos said that such a result suited him. General Foreman Car- penter testified credibly and without contradiction that, during the period of the negotiations but while he was discharging his foreman duties in the plant, approxi- mately three named employees asked him whether, by getting the extra week's vaca- tion, the bonus would be eliminated . Carpenter told them that he did not think that they would get both the extra week and the bonus. In the light of all the foregoing testimony which I credit, I find, in addition to my consideration of witnesses Vernon Ayers and Creed Ayers, individually, both of whom were union members, basis for crediting their testimony that in November there were rumors going around the plant that if the new vacation scale requested by the Union was put into effect, the bonus would be eliminated . Chief Steward Long testified that during the negotiations there were rumors in the plant about the Christmas bonus. but he did nothing about the matter or refer to the rumors at the bargaining sessions.. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - At a union meeting, on November 30, the membership ratified the agreement that had been reached on November 28. Based on a consideration of the testimony of Rutherford, Long, Vernon Ayers, Cronos, Creed Ayers, and Collins, all of whose testimony was in substantial agreement on the point, I find that at the November 30 meeting several union members asked Rutherford from the floor of the meeting whether the bonus would be affected by the increased vacation provision of the contract. Rutherford replied that it would not be affected since the Union had not negotiated on the bonus and Rutherford did not believe that Tucker would want to make all the wives mad at him by eliminating the bonus .4 Thereafter, the Union apparently undertook to have the agreed-upon and ratified contract put in final form for company and union signature During this period Rutherford, who worked out of St. Louis, was not in Knoxville. On December 6, 1960, the Company prepared a letter addressed to each employee and attached to the paychecks of December 9. A copy of the letter was not sent to Rutherford or to the Union as such. The letter referred to the fact that "as you know, the Company has just agreed to a new contract with your Union." It then mentioned the wage increase, the change in the vacation provision, and shift differen- tials. With the wage increase and fringe benefits, the letter stated, the total cost to the Company was $160 per employee annually. The letter continued: These continuously rising costs make it harder and harder for the Company to take business and show a fair profit... . In view of these circumstances, the management of the Company has decided to discontinue giving Christmas bonuses effective this year. This step is taken re- luctantly for it has become an institution with us; however, when our com- petitors are striving daily to cut their costs of doing business, we must do likewise or go out of business. The evidence is clear that no individual employee or group or anyone having a union title, such as the chief shop steward or the shop stewards, protested to the Company about the announcement of the bonus discontinuance. I am also satisfied and find that the elected officers of Local 715, none of whom were employees of Respondent, and Rutherford were not aware of the foregoing letter. Rutherford came to Knoxville on December 20 with the contracts in final form. This was his first return since the contract ratification meeting on November 28. He came to the plant and saw Kesley. Since Rutherford had only a short layover in Knoxville before catching an outgoing plane he told Kesley that he was leaving the contracts with him for checking. Kesley began looking over the contracts and Rutherford said he wanted Chief Steward Long to be present if there was any ques- tion concerning contract provisions. It was raining at the time and Kesley said there was no use bothering Long since Kesley's perusal would take but a few minutes. After 30 or less minutes of reading Kesley said everything was in order and he then had Tucker sign the contract. Kesley also signed for the Steel Supply Company since he was secretary-treasurer of both corporations. Rutherford departed with a copy for himself, the Local Union, and union headquarters. On this trip he did not see Long or the other stewards. I credit Rutherford in his testimony that he first learned of the discontinuance of the bonus on January 6, 1961, when he again came to Knoxville and Respondent's plant. On that occasion Long told Rutherford that the Company did not pay the bonus. He told Rutherford of the December 6 letter. Rutherford testified that he was "flabbergasted." He then ascertained that the officers of Local 715 were unaware of the matter and that no copy of the letter had been sent by the Company, to the Union, or to his home. In the course of his testimony, Chief Steward Long was asked about his receipt of the December 6 letter. Long said the letter struck him as peculiar but he did not discuss it with anyone in the Company, or with the president of Local 715, or with Rutherford (because he was out of town),, or with anybody else. Although Long admitted that he had no reason to expect Rutherford to be in town at that particular time, he said he was looking for Rutherford, who, when passing through, usually gave him a call. Long said sometimes he saw Rutherford "quite often" but at other times 3 or 4 weeks would elapse. Rutherford testified that although he traveled a good deal his people had been instructed to call his wife at his home and "she can tell them where I am within the 24 hours." 8 4 One of the witnesses was under the impression that it was Rutherford who did not want to have the wives mad at him but I am satisfied from the testimony of the other witnesses, for instance, Cronos, that the reference was to Tucker. 5In connection with Long's general approach on the subject, there is the testimony of employee Harris, a member of the Union, whose testimony I credit Harris stated that TUCKER STEEL CORP., AND STEEL SUPPLY CO. 331 On January 7, 1961, Rutherford wrote to the Company stating that the Union wished to bargain "regarding the matter of Christmas bonus" and adding, "The Union regrets the unilateral action of the Company on the matter of the annual Christmas bonus since the employees and particularly their wives have expected the subject matter each year as a part of their wages." Respondent, on January 10, replied in writing to the foregoing stating that "since we have in good faith arrived at a contract with your Union, we do not feel that the Christmas bonus subject should be reopened at this time." The letter referred to an opinion of counsel which was enclosed and concluded, "accordingly . we must decline to bargain on that matter." Counsel's opinion, above referred to, was contained in a letter to Tucker and stated that since the bonus was discussed during negotiations the Company was not required to bargain thereon at the time. The Union on January 25 replied to the foregoing letter and denied that the bonus had been discussed although admitting that the Christmas party had been injected at one session . The letter reiterated the request to bargain on the bonus. In a letter of January 31 to the Union, Tucker referred to the Union's denial that the bonus had been discussed in negotiations. The letter then stated: The first time vacations were brought up . I personally informed [the shop committee] that in considering vacations that they had to consider that Tucker Steel had always paid an extra week's work as a Christmas bonus and that we could not competitively pay this . . . if we had to pay the same vacations as they [our competitors] do under the contract. Not only was this brought up by the writer in negotiations, but our Mr. Herb Jenkins on November 22, 1960, went around in the shop and asked most of the employees the question "Which would you rather have, a Christmas bonus as you have been receiving or improved vacations?" We have a signed state- ment by many of our shop employees to this effect. Because of the above, we do not feel that negotiations can be reopened on this subject unless it is your desire to reopen negotiations on the total contract as outlined in the contract. The Union filed its charge of unfair labor practices on February 23, 1961. 3. Conclusions The Christmas bonus, paid by Respondent without interruption from 1947 to 1960, was a form of "wages" and monetary compensation and was also a "condition of employment" as those terms are encompassed by the Act. As such, the bonus was a proper subject of collective bargaining.6 The true nature of the bonus as a form of monetary compensation for services rendered is confirmed by the state- ments of Respondent's president on November 21 when he reminded the union representatives that the Company was already paying an extra week's pay in the form of a bonus and could not continue to do so from a competitive standpoint if it granted the Union its increased vacation demands.? Although the bonus was a bargainable matter neither the Company nor the Union bargained thereon in the past. The subject over the years was neither raised nor discussed by the parties and was not referred to in the contract. Respondent re- garded the bonus as a management prerogative and-as an act of benevolence toward its employees. Since a bonus of I week's salary was paid to all employees annually since 1956, and prior thereto variable but nonetheless substantial amounts had been paid without interruption, the employees raised no question regarding the Company's dispensation. Such discretionary adjustments regarding the bonus as were made by after the contract was ratified he was speaking to Long about a petition Harris was work- ing on relating to the bonus Long told Harris on that occasion that the bonus is a "Christmas gift and when a man is ready to quit I didn't see no reason why he couldn't quit it " Sanger Manufacturing Company, 24 NLRB 444, 470, enfd 119 F. 2d 131 (C.A 7) ; Tower Hosiery Mills, Inc, 81 NLRB 658, 659, enfd. 180 F. 2d 701 (CA. 4) ; Niles- Bement-Pond Company, 97 NLRB 165, enfd. 194 F. 2d 713 (CA 2) , Century Cement Manufacturing Company, Inc, 100 NLRB 1323 ; Peyton Packing Company, Ioac, 129 NLRB 1275 c "That the bonus constituted an Integial part of Respondent's wage structure was underscored by the sharp reduction in the 1950 bonus owing to the increased cost of the newly negotiated retirement plan. Clearly, in the Respondent's calculation, the retire- ment plan supplanted, in part, the bonus as a wage enhancement " Nales-Bement-Pond Company, supra, pages 166-167 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company in cases of an ill employee or otherwise were apparently of a fair and reasonable nature and evoked no dissatisfaction. Insofar as the individual employees were concerned they appear to have regarded the bonus as a matter of financial value that was given to them as employees by their employer .8 The evidence indi- cates that at least as long as the Company paid the bonus to the employees every year 'the Union made no attempt to bargain thereon or to do anything else but to allow Respondent to pay the bonus. This was true until January 7, 1961, when the Union for the first time sought to bargain regarding the bonus. As a general proposition, where a subject is a bargainable item, such as thg instant bonus, it may not be dealt with unilaterally by the employer (or the Union).9 It is also true that a party to a contract may waive its rights to bargain about bargainable subjects.19 But a waiver is not to be readily inferred and it should be established by proof that the subject matter was consciously explored and that a party has "clearly and unmistakably waived its interest in the matter" and has "consciously yielded" its rights." In connection with the foregoing propositions the General Counsel and the Respondent advance two basic contentions, inter alia. The General Counsel argues that the Union had not waived its right to bargain concerning the bonus and there- fore both the unilateral discontinuance of the bonus and the subsequent refusal to bargain about the bonus constitute conduct proscribed by Section 8(a)(5) of the Act. Respondent, on the other hand, urges that the Union waived its right to bargain about the bonus and therefore Respondent could legally discontinue the bonus and could refuse to bargain thereon when requested to do so in January 1961. I am unable to agree completely with either party and I do not believe that either the facts in this case or the law confront me with the sole alternative of an "either-or" position, i.e., either there has been a waiver by the Union which immunizes both Respondent's unilateral discontinuance of the bonus and its subsequent refusal to bargain on the bonus, or there has been no waiver of the right to bargain on the bonus and therefore both the termination of the bonus and the refusal to bargain thereon upon request are illegal acts. The foregoing "either-or" position is the one most commonly to be found in the cases but this is attributable in the main to the particular factual situation and not to any compulsion in the law or in logic. It is my opinion and I find that the Respondent by its unilateral discontinuance of the bonus did not act illegally or in derogation of the obligations of Section 8(a) (5) of the Act. I reach this conclusion by reason of the fact that for 12 years the Union allowed the Respondent to deal with the bonus unilaterally; there was no attempt to bargain about the bonus prior to its discontinuance or to subject it to any form of joint control; Respondent consistently treated and characterized the bonus as a gift and did so without opposition; on November 21, 1960, at the inception of bargaining, Respondent referred to the bonus and indicated the possibility of uni- lateral bonus termination if the Union obtained its increased vacation demands; at no time during the bargaining did the Union raise or seek to discuss the bonus; the com- pany letter of December 6, 1961, announcing that the Company had determined to discontinue the bonus evoked neither protest nor discussion from the employees and the Union., 8 Whether or not individual employees regard a particular matter as a subject of collective bargaining under the Act is of course not determinative Many an average employee , if asked about a company financed retirement program or paid vacations, would probably characterize such matters as gifts or benefits granted by the employer The degree of sophistication of employees in a plant , organized or otherwise, varies and some, if asked , would not know whether or not data on merit increases was a hargainable matter or something peculiarly within the employer's discretion In many instances em- ployees would describe their group leader as a "boss " or supervisor whereas on the par- ticular facts it might well be that such group leader was not a supervisor within the meaning of the Act. But whether or not particular matters are wage enhancements or conditions of employment or subjects for collective bargaining or whether a man is a supervisor is not determined by the opinions of individual employees 9 Tide Water Associated Oil Company, 85 NLRB 1096 , 1097, Beacon Piece Dyeing and Finishing Co, Inc., 121 NLRB 953 , 956; The Press Company, Incorporated, 121 NLRB 976, 977-978; Inland Steel Company, 77 NLRB 1, enfd 170 F 2d 247 (CA 7) 10 N.L R B. v Na8h-Finch Company, 211 F 2d 622 ( CA 8) ; Speidel Corporation, 120 NLRB 733; Intermountain Equipment Company v. NLRB, 239 F . 2d 480 (C A 9) . cf. General Electric Company, 127 NLRB 346, 348 ; Larkin Coils, Incorporated, 127 NLRB 1606. UTide Water Associated Oil Company, Supra; Beacon Piece Dyeing and Finishing Co, Inc., supra ; The Press Company, Incorporated, supra. TUCKER STEEL CORP., AND STEEL SUPPLY CO. 333 The aforementioned letter, as we have seen, was sent to each individual em- ployee, including the highest ranking union representatives in Respondent's plant, the ctet shop steward, and the shop stewards. Although the letter was sent to the stewards as employees like all the others, it .was nevertheless sent and received. Prescmdmg at tins time from the question of whether receipt of the letter by the chiet shop steward and stewards constituted notice of the letter attributable to the Union, I am convinced that the Company must have expected that the contents of the letter would come to the Union's attention soon after the letter was mailed and prior to the execution of the contract. I base the last-mentioned conclusion on the fact that in a plant where the Union had been the 'bargaining agent for 12 years, the individual employees, members of the Union, inclucing the stewards, had all re- ceived the December 6 letter. Under such circumstances, I am unable to conclude that the Company believed that the Union, or more specifically Rutherford, would remain ignorant of the letter. Rather, it is my opinion that the Company believed and had reason to believe that at least by December 20, 1960, when the contract was executed, Rutherford was aware of the Company's action in announcing ter- mination of the bonus and had raised no question thereon. There is no inconsistency between the foregoing conclusion and my prior finding that, in fact, Rutherford did not become aware of the December 6 letter until January 6, 1961. Nor is the conclusion as to what the Company must have reasonably believed at the time it terminated the bonus in the latter part of December 1960, in consistent with the fact that a copy of the December 6 letter had not been sent to the Union or to Ruther- ford as such. The simple but accurate explanation for the latter omission was that the Company consistently viewed the bonus as a management prerogative and not a bargainable matter. The Company had reason to believe that the Union acquiesced in this position. The basis for such belief, as previously stated, was a 12-year history of unilateral control, plus the statement of Tucker on November 21, the silence of the Union, and the execution of the contract on December 20 without protest regard- ing the December 6 announcement.12 Without basing the foregoing result on a narrow technical doctrine unsuited to administrative labor law, the facts, however, fall within an area of equitable estoppel. The course of conduct of the parties was such that the ingredient of an equitable estoppel was present, in that the Respondent reasonably relied upon the Union's conduct in relation to the bonus as confirmatory of Respondent's belief that it could deal unilaterally with the bonus. Such an estoppel may of course result even though the party estopped, the Union, did not intend to lose or to forgo its existing rights or did not consciously agree that the Respondent could unilaterally terminate the bonus. The last-mentioned sentence in the preceding paragraph now takes us into the other facet of the case, the question whether the Respondent's refusal to bargain upon request in January 1961, after the discontinuance of the bonus, was legally justified. In my opinion, it was not and, I find, that Respondent thereby violated Section 8 (a) (1) and (5) of the Act. The essential ingredient of Respondent's legal unilateral termination of the bonus in December 1960, was its reasonable reliance upon a course of conduct by the Union which equitably estopped the latter regardless of the latter's intent. The foregoing ingredient is not enough to justify the subsequent refusal to bargain. The necessary element for defense of the January refusal to bargain is convincing evidence that the parties bargained about the subject of bonus and that the Union consciously yielded its rights thereon-13 The appearance of things, as distinguished from their actuality, and Respondent's good-faith belief, are insufficient. Respond- ent, in my view of the evidence, believed that the bonus was a management preroga- tive and not bargainable; it believed that the Union acquiesced in Respondent's posi- tion by its past conduct, by its conduct at the negotiations where Respondent referred to its position on the bonus, by the Union's apparent acquiescence in the December 6 announcement of bonus discontinuance, and by the execution of the contract on December 20 in the face of the December 6 announcement. Respondent, therefore, in refusing to bargain in January 1961, took the position in effect that the Union had waived its right to bargain on the bonus. The difference between my view of the discontinuance of the bonus by Respondent and its refusal to bargain concerning the bonus in its letter of January 10, 1961, is r 'a One of the factors previously described was the fact that at no time prior to the actual discontinuance of the bonus did the Union seek to bargain on the bonus. This factor if viewed in isolation would not normally excuse an employer's unilateral action on a matter of wages or conditions of employment but the important consideration is that neither this factor nor the others are to be viewed except in the context of this particular bargaining relationship. Is See cases cited in footnote 10, supra. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conveniently expressed by the difference between equitable estoppel and waiver. Although the foregoing terms are sometimes used interchangeably, the facts in the instant case fall into two distinct categories and I use the words estoppel and waiver as distinct from each other. Waiver is the intentional or voluntary relinquish- ment of a known right. The essential element is an actual intent to abandon or surrender whereas in estoppel such intent is immaterial .14 In speaking of the re- quirement that to be foreclosed from bargaining on a bargainable subject a union must have consciously explored the issue and must have consciously yielded its interest, the Board and the courts are speaking of waiver whether they use that term or some other. The reasons why I conclude that the Union did not waive its right to bargain on the bonus are as follows: Without interruption over a substantial period of years the union members had received a cash bonus from their employer. The payment was obviously a thing of value and an enhancement of the employees' wage income. Although the employer exercised full control over the bonus, the bonus was always paid and in a substantial amount. Minor fluctuations in the years prior to 1956 never impaired the essential nature of the bonus and at no time in the past had the employer ever discontinued the bonus for a particular year. From 1956 to 1960, the bonus was a fixed sum of 1 week's pay. The employees and the Union were content with this state of affairs and undoubtedly reckoned upon the bonus as one of the financial benefits of working for Respondent. The evidence shows that Rutherford, when faced with complaints, in the course of bargaining, by Respondent's competitors that Respondent's contract had lower rates or less fringe benefits than their own con- tracts, referred to the fact that Respondent paid a Christmas bonus. Moreover, over the years, while receiving the bonus, the Union continued to improve the provisions of its contract with Respondent. The evidence shows that the contract provisions of the most recent contract gave the employees more benefits than its predecessor. It is a fair inference that the 1959 contract in turn was an improvement, from the standpoint of the employees and the Union, over the 1949 and other contracts. In view of the foregoing salutary state of affairs, the Union, during the 1960 negotiations, as in the past, said not a word about the bonus, which, as the Respondent said on December 6, had "become an institution with us." I have no doubt that it was the Union's intent and expectancy in 1960 that it would again im- prove the terms of the contract and that the bonus, by now regarded as institutional- ized, at least in the Union's eyes, would continue as in the past. Tucker's remarks on November 21, that if the Company went "along with the increased vacation schedule [proposed by the Union] we are going to cut out the Christmas bonus" should have and probably did give the Union some pause. However, as I view the evidence, the Union did not regard Tucker's remarks as a fixed bargaining position or as an "either-or" alternative. This for several reasons. Tucker was not the principal negotiator for the Company and he was present for a relatively short period at only one session . Tucker, on the same occasion, had also stated that he was opposed to all fringe benefits, a statement that was clearly not applied or car- ried out in the subsequent bargaining. At no other time in the course of bargain- ing did Kesley, the principal negotiator, ever reiterate the statement on the bonus or refer to the subject. This position was not stated at the third session when the parties hammered out agreement on the vacation clause From the Union's stand- point and perhaps from the Company's as well, it might be reasonable to expect Kesley to say, in effect, at that stage or some stage when the parties had reached the meat of the bargaining coconut, "if you want these vacation improvements, you will not get the bonus" or "you know that by granting these improvements in vacations we cannot continue to pay the bonus," Additionally, as Rutherford testified and as the evidence shows, the Union did not obtain the vacation clause that it had originally proposed. True, the Union obtained most of what it had asked but not all, and it believed, in view of the other circumstances aforedescribed, that whatever definitive- ness might be attached to Tucker's remarks became inapplicable since the Company had not literally gone along "with the increased vacation schedule" -proposed It is important, I believe, at this point, before continuing with our consideration of the negotiations, to stress that on this aspect of the case, the question of waiver, we are not concerned primarily with the wisdom of the Union or with what the Company on its part may have reasonably believed. This latter aspect we have pre- viously considered. What commands our attention at this juncture is whether the Union consciously bargained away the bonus and consciously yielded its rights to bargain thereon. Of course, if the Union's position and conduct was so unreasonable or so illogical that it compelled the conclusion, that it must be held to have con- 14 Black's Law Dictionary , 4th ed. TUCKER STEEL CORP., AND STEEL SUPPLY CO. 335 sciously yielded its rights, there is a different result. But, so far, in my opinion, there has been no bargaining on the bonus and no conscious yielding of rights thereon. Continuing with the analysis of the evidence regarding the waiver aspect, I find no waiver by the Union by reason of the fact that rumors among the employees were prevalent in the plant and known to the Chief Shop Steward Long, who was present during the negotiations. 'Nor do I find that the activity and statements of Foreman Jenkins which were not shown to be known by the Union contribute to establishing a waiver. Notwithstanding the fact that Long was present during the negotiations, it is clear to me from the entire evidence in the case and from my observation of Rutherford and the stewards as witnesses that it was the former who was the ne- gotiator for the Union. Rutherford was the professional. Long, an hourly rated machine operator in the plant, and the others may have supplied technical infor- mation on various jobs and conditions but I am unable to conclude that he was "carrying the ball" in any manner approaching the role of Rutherford. Long did not tell Rutherford about the rumors and the latter was not aware of them. In speaking of waiver and conscious yielding of rights and intentional relinquishment we do not reach such matters through constructive notice as distinguished from actual notice. Intentional relinquishment results from actual knowledge of the factor that is relinquished or waived. But even if Rutherford had been aware of rumors, I believe that Rutherford's basic position was the same as heretofore de- scribed. General rumors would certainly carry less weight than Tucker's statement and this had been evaluated by the Union in the context of the actual negotiations and the factors previously mentioned. Confirmation of this view is to be found in Rutherford's reply to inquiries at the contract ratification meeting of the Union on November 30. Rutherford said that the bonus would not be affected by the in- creased vacation provisions of the contract and that the Union had not negotiated on the bonus. I do not believe that the Union was deliberately lying to its own mem- bers at this meeting only 2 days after the final contract negotiation session. There is no reasonable motivation for falsehood under such circumstances. A frank statement was in order and I believe it was given. Rutherford also stated that he did not think that Tucker would wish to incur the displeasure of the wives by dis- continuing the bonus. This last statement indicates an additional reason why the Union did not consider the bonus to be in jeopardy. It is unlikely that it would have been made if the parties had consciously bargained away the bonus in the course of their negotiations on the contract. The December 6 letter of Respondent announcing discontinuance of the bonus said nothing about the parties having negotiated on the subject of bonus or that the Union chose to trade off the bonus for increased vacations. In substance, the letter refers to the increase in operating costs and pressing competition and states: "In view of these circumstances, the management of the Company has decided to discontinue giving Christmas bonuses effective this year." I am quite unable to discern any indication in the foregoing that the Union had waived or consciously yielded its rights repecting the bonus or that the bonus decision was other than an assertion of management prerogative, albeit based in material part, as I have previously pointed out, on what management believed was the Union's acquiescence in management's position. As we have seen the December 6 letter did not come to Rutherford's attention until January 6, 1961, and he thereupon promptly requested Respondent to bargain on the Christmas bonus and characterized the Company's action as "unilateral." This again, in my opinion, affords no support to the view that the Union, at that time or prior thereto, had in fact consciously yielded its bargaining rights on the bonus. The inaction of Chief Steward Long and the others between their receipt of the December 6 letter and the execution of the contract on December 30, does not alter the foregoing conclusion. Long and the other employees at the time probably did regard the bonus as something given by the Company which by the same token could be taken away. The company letter as we have seen, simply stated that the Com- pany had decided to terminate the bonus. There was no assertion that the Union had bargained away the bonus and thus from Long's standpoint and the others' there appeared to be nothing to 'challenge or to do. My appraisal of Long was that he was a fairly average employee. His principal duty was to handle complaints in the form of grievances and to give his fellow employees information about the Union. He did not impress me as a sophiscated union representative schooled in the niceties of labor la*. The average employee and probably others, if asked whether a Christmas bonus was wages or a condition of employment within the meaning of the National Labor Relations Act, would probably say "No." The response might well be the same, as I have previously explained regarding an employer-financed 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pension and retirement plan. In short, on this issue of union waiver in fact as dis- tinguished from appearances or what management may have believed at the time, the silence and inaction of Long and his fellows has little or no material significance. At most, the receipt of the December 6 letter by Long and the other employees and their inaction would mean that the Union and Rutherford had constructive notice of the bonus discontinuance and had waived their rights by executing the contract in the face of the announced bonus discontinuance. As previously stated, a waiver as we use the term regarding statutorily protected rights under the Act is an intentional or conscious relinquishment and it does not result from the situation aforedescribed when the Union had no actual knowledge of the Company's letter when it executed the contract. The facts in the instant case convince me that the parties did not bargain about the Christmas bonus. They never came to grips with the issue. Respondent did not consider the bonus to be a bargainable subject and never offered to bargain thereon. Also, in the course of bargaining the Respondent never asserted that the bonus was a management prerogative and not a bargainable subject and the Union never agreed with such a proposition . Respondent's sole reference to the bonus at the bargaining sessions was not that the bonus was a nonbargainable subject but that from the competitive standpoint it could not afford to pay both the bonus and the vacation schedule proposed by the Union. The Union never attempted to bargain on the bonus prior to January 7, 1961, but had not in fact consciously yielded its right to do so. By its refusal to bargain concerning the bonus on January 10, 1961, I have there- fore found a refusal to bargain within the meaning of the Act. In connection with the foregoing conclusion, the Respondent's letter to the Union on January 31, 1961, merits consideration .15 The General Counsel does not discuss this letter in his brief nor did he refer to it in oral argument . The complaint alleges a refusal to bargain on January 10, 1961, "and at all times thereafter." At the conclusion of its brief, Respondent makes reference to paragraph 26 of the contract.16 Respondent asserts that section 26 of the contract "provides a channel by which any amendment during the term of the'agreement can be handled.. . This contract obligation and method of procedure was completely ignored by the Union. In its letter of January 31, 1961 (General Counsel's Exhibit No. 8), the Company offered to proceed in accordance with the contract. It is still willing to so act." The precise meaning of the last paragraph of the January 31 letter, supra, is not entirely clear. It appears to say that negotiations on the bonus will entail, according to the contract, reopening the entire contract. I am not sure that this is what the contract provides since section 26 states that a request for an agreement amending the contract "shall in no way affect or result in a termination or expiration of this agree- ment or prevent or obstruct any continuation or renewal thereof." Without attempt- ing to impose my own view of the contract upon the parties in the foregoing respect, I cannot conclude that the January 31 letter constituted an unqualified offer to bargain as required by the Act in the circumstances of this particular case. It is a statement of position that is not entirely clear to me and I cannot say how the Union understood it or should have understood it. There is no testimony on this aspect. The statements in Respondent's brief, which I have cited above, cannot substitute for what it actually said on January 31, 1961. However, as I read the brief, Respondent's position is that the Union has a right to seek to bargain on the bonus solely pursuant to the amendment procedure of the contract. Apparently, this is 'S The letter, as we have seen, disagreed with the Union 's assertion that the bonus had not been discussed and made reference to Tucker 's remarks on November 21, and to Jenkins' questioning of employees regarding the bonus on November 22 The final para- graph stated : "Because of the above , we do not feel that negotiations can be reopened on this subject [ the bonus ] unless it is your desire to reopen negotiations on the total contract as outlined in the contract " 16 "SEC. 26. This agreement may be amended at any time by an agreement in writ- ing. . . . The party desiring such an amendment shall submit a proposal thereof in writ- ing to the other party, which shall be entitled 'Request for Interim Agreement ' and specify that it is given under this section 26, and upon receipt thereof the other party shall promptly consider such proposal and, if requested to do so , discuss it with the other party proposing the amendment. The giving of such written Request for Interim Agreement shall in no way affect or result in a termination or expiration of this agreement or pre- vent or obstruct any continuation or renewal thereof. It is expressly understood that if any disagreement should arise between the parties as to any 'Request for Interim Agreement' submitted by either party under this section 26, such disagreement shall not be reviewable under the grievance procedure . .. nor arbitrable under the arbitration provisions . . . a TUCKER STEEL CORP., AND STEEL SUPPLY CO. 337 the basic proposition intended by the January 31 letter although the letter also proffers some additional elaboration. I am unable to agree that the Union's right to bargain about the bonus is de- pendent upon the contract. It is my opinion that the Union's right to bargain herein on the subject of bonus is a statutory right and derives from the Act and is not dependent upon the terms of the contract.17 What is required is that the Respondent bargain with the Union in good faith regarding the bonus, nothing less and nothing more. The details of the bargaining are for the parties to determine in the course of bargaining. Whether they bargain on the bonus as an isolated subject or as a subject related to other matters, or, whatever their positions, is not for me to determine herein.18 In view of the distinction that I have drawn in this report, between (1) the legality of Respondent's discontinuance of the bonus prior to any request by the Union to bargain on the subject of bonus and in a context of 12 years' history, including the events of November and December 1960, that reasonably led the Respondent to believe that the Union acquiesced in Respondent's view that it could deal with the bonus as it wished; and (2) the ,illegality of Respondent's refusal, upon request, to bargain subsequently on the bonus because, in my opinion, there had been no conscious waiver of the right to bargain, an examination of the facts in some of the leading cases is in order with reference to the foregoing distinctions. In Niles-Bement-Pond Company, supra, the Company paid a Christmas bonus for many years, apparently with unilateral control. On December 11, 1950, the company announced a change in the prospective bonus. The union requested that the company bargain on the bonus plan and the parties met thereon on December 21. The company took the position that the bonus was not a bargainable subject. Such was the issue in the case and there was no basis for estoppel or waiver since the union had timely sought to bargain before the company took definitive action. In Beacon Pierce Dyeing and Finishing Co., Inc., supra, during the most recent negotiations the union had proposed a contract clause regarding workloads but the company refused to discuss the subject. It was held that there was no waiver and there was clearly no estoppel situation since the company unilaterally changed workload assignments after the negotiations, aforedescribed, on the very subject. The Press Company, supra, involved unilateral company discontinuance of com- missions after the union in prior and current contract negotiations had challenged repeatedly the company's management prerogative position on commissions. Speidel Corp., supra, involved a "waiver situation" as I have used the term herein. There, in the most recent contract negotiations the company had rejected a union proposal for a maintenance of standards contract provision and did so for the stated reason of avoiding a contractual obligation on bonuses. This constituted in effect a reiterr tion of a prior management prerogative position and the union by its complete silence acquiesced therein. In the instant case, issue was never joined on the bonus and the one reference to ,the subject by Respondent was not in terms of management prerogative ,but solely on the ground of economics and competition. N.L.R.B. v. Nash Finch, supra, is substantially to the same effect since there the union proposed during negotiations a specific provision to maintain standards and then agreed to a company counterproposal. In Inland Steel Company, supra, the com- pany had maintained a pension and retirement program since 1936, prior to the advent of the union in 1941. In December 1945 and February 1946, the company announced to the employees its unilateral determination to apply a separation- 17 Cf footnote 29, p 15, Inland Steel Company, supra, wherein the Board stated: "Even if we were to assume that, as the respondent contends, the contract gave respond- ent the privilege of dealing unilaterally with any aspect of its pension and retirement program during the term thereof, we are nevertheless convinced and find that the re- spondent's admitted rejection of the principle of collective bargaining as to pensions on grounds other than the contract is violative of the Act, in that it foreclosed bargaining for any agreement with respect to its pension policy, irrespective of the time at which such agreement might become effective " 1B Cf. Tower Hosiery Mills, Inc., supra, p. 659: Although the Respondent was under an obligation to bargain with the Union o-l tile subject of bonus, we do not agree . . . that the Respondent has failed to meet this obligation. . . . Rather, the Respondent has refused only to enter into a binding obligation to pay a Christmas bonus in a specified amount, when its practices had been to determine at the end of each year whether or not its earnings justified the payment of a bonus The refusal to enter into such an obligation does not constitute a violation of its duty to bargain with the Union within the meaning of the Act 630849-62-vol. 134-23 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because-of-age policy on an automatic rather than on a case-by -case basis. The union protested and the parties met . Respondent refused to discuss the matter and its position was that the subject was not a bargainable one and that the union had previously waived its rights, at least for the duration of the contract. The Board found no waiver on the union's part. Inter alia, the Board observed that there was at most a very qualified acquiescence to an existing and different type of separation policy than that later announced by the company. But the factual situation of the instant case was not presented since as soon as the Company had announced its unilateral decision as to what it was going to do regarding sep- arations the Union protested and there was no doubt as to the Union's position. In the instant case, the acquiescence of the Union, as the Respondent reasonably believed, was much more apparent than in Inland, including the December 6 un- protested and apparently acquiesced in announcement of bonus termination and the execution of the contract in the face thereof without protest. I shall not repeat at this point my reasoning as to why, although the foregoing created an equitable estoppel regarding the Respondent's action in terminating the bonus, it did not constitute a waiver of the subsequently asserted right and demand to bargain about the bonus termination. The Jacobs Manufacturing Company case, supra, was concerned with a refusal to bargain on pensions, insurance, and other matters at the time of a wage reopener in the course of the existing contract. Apparently there was no pension plan in Affect and there was nothing in the contract on the subject. The Board, citing the Tide Water case, supra, held that the employer was obligated to bargain on pensions. However, the majority of the Board reached a different result regarding insurance. It was held that this subject had been consciously explored in prior negotiations when the union had requested a change in the preceding insurance program so that the company would assume the entire cost thereof. This was the same proposal that the union subsequently made on the reopener and this was the proposal rejected by the company in the prior negotiations. The facts in Jacobs therefore in no way presented the situation in the instant case as to either of the two conclusions that I have reached. Tower Hosiery Mills, Inc., supra, was a case where the Board, while stating that the employer was obligated to bargain on its bonus program, found that the parties had bargained fully on the subject including prior proposals of the union for a bonus provision in the contract, and therefore, there was no violation of the Act on this aspect. The balance of the case was epitomized by the Board as a situation where "the entire course of conduct followed by Respondent . . . evi- dences a lack of good faith and a determination not to conclude an agreement with the Union." The case is therefore not the instant case. The facts in Proctor Manufacturing Corporation, 131 NLRB 1166, were such that the Board found no waiver on the part of the union . The rationale is in accord with my conclusion regarding waiver in the instant case. There was no situation in that case comparable to the long and significant context of events in the instant case whereon I based my conclusion that the Respondent had not unlawfully discontinued the bonus. Moreover, the union in Proctor protested the unilateral changes when they were announced and requested bargaining thereon and the hiatus of apparent acquiescence present in the instant case from December 6, when the Company made its announcement , to the actual nonpayment of the Christmas bonus, was not present. The cases of Hekman Furniture Company, 101 NLRB 631, 632, 641; California Portland Cement Company, 101 NLRB 1426, 1439-1440; Westinghouse Air Brake Company, 119 NLRB 1118, 1128; Tide Water Associated Oil Company, 85 NLRB 1096, 1097-1099, 1121-1122; Larkin Coils, Incorporated, supra; The Borden Com- pany, 110 NLRB 802, 804-805; Intermountain Equipment Co. v N.L.R.B., supra; General Electric Co., supra, are not in conflict, in my opinion, with the instant con- clusions regarding waiver nor do they present comparable situations with respect to the matter involving the instant bonus termination. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connec- tion with the operations of the 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 It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, it will be recommended that it TUCKER STEEL CORP., AND STEEL SUPPLY CO. 339 cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since under the particular facts of this case I have not found the discontinuance of the bonus in December 1960 to have been illegal, I do not prescribe as a part of the remedy the retroactive restoration of the bonus. The bonus is a subject for bargaining and I shall recommend that the Respondent, upon request, bargain with the Union as the exclusive representative of the employees in the appropriate unit with respect to the bonus. Although the Union did request bargaining on the bonus in January 1961 it is my opinion that under the circumstances it is appropriate that the Union renew its request in order to initiate bargaining. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. All production and maintenance employees of Respondent including truck- drivers and yardmen, but excluding all guards, professional employees, officers, and supervisors with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively to recommend such change, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. At all times since October 4, 1948, and at all times thereafter, the Union has been the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain collectively with the Union as the exclusive representa- tive of its employees in an appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act. 6. By unilaterally discontinuing payment of the Christmas bonus in December 1960, Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning'of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations 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 refuse to bargain collectively with Shopmen's Local Union No. 715, of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the exclusive representative of all our employees in the appropriate unit with respect to the Christmas bonus. WE WILL, upon request, bargain collectively with Shopmen's Local Union No. 715, aforesaid, as the exclusive representative of all employees in the following bargaining unit, with respect to the Christmas bonus, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All our production and maintenance employees including truckdrivers and yardmen, but excluding all guards, professional employees, officers, and supervisoryteniployees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recom- mend such change. TUCKER STEEL CORPORATION, AND STEEL SUPPLY COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.