The Beacon Journal Publishing Co.

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Beacon Journal Publishing Company and Newspaper Delivery Drivers, Chauffeurs and Handlers Local Union No. 163, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America The Beacon Journal Publishing Company and Akron Printing Pressmen and Assistants Union Local No. 42, International Printing Pressmen and Assistants Union of North America, AFL-CIO The Beacon Journal Publishing Company and Akron Paperhandlers Local No. 7, International Printing Pressmen and Assistants Union of North America, AFL-CIO The Beacon Journal Publishing Company and Local No. 82 , Akron Mailers Union, affiliated with the International Mailers Union. Cases 8-CA-4184,4227,4231, and 4246. agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. Member Zagoria, dissenting: The facts here show that in 1962 the Union attempted to secure a contractual Christmas bonus payment and failed to achieve its goal. None of the eight contracts between Respondent and the Union governed the payment of the bonus. Furthermore, each time the bonus was paid, Respondent accompanied the payment with a letter indicating its voluntary nature. It is conceded that no antiunion motivation was involved in the change in method of computation; rather, the record demonstrates that the Employer's decision was based solely upon economic considerations. In these circumstances, I cannot agree that Respondent's change was in derogation of the Union's exclusive bargaining status. TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER May 18, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On December 8, 1966, Trial Examiner William F. Scharnikow issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices violative of Section 8(a)(1) and (5) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as recommended in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, its officers, STATEMENT OF THE CASE WILLIAM F. SCHARNIKOW, Trial Examiner. Each of the complaints in the above-captioned cases, which have been consolidated for trial and disposition, alleges that in December 1965 the Respondent, The Beacon Journal Publishing Company, committed unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et. seq., herein called the Act, by unilaterally altering the formula upon which its annual Christmas bonus to its employees is based, without consulting any of the Unions named in the above captions, although each of these Unions was then the exclusive bargaining representative of an appropriate bargaining unit of the Respondent's employees within the meaning of Section 9(a) and (b) of the Act. The Respondent, in its answers to the complaints, denies commission of any such unfair labor practice. Pursuant to notice, a hearing was held at Akron, Ohio, on July 19, 1966. The General Counsel and the Respondent appeared by counsel and each of the Unions by their representatives, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. Since the hearing, I have received and considered briefs submitted by counsel for the General Counsel and for the Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Ohio corporation, with its principal office and place of business in Akron, Ohio, publishes and distributes a newspaper known as The Akron Beacon Journal. In the course and conduct of its publishing operations, the Respondent holds membership in, or 164 NLRB No. 98 THE BEACON JOURNAL PUBLISHING CO. subscribes to, various interstate news services , publishes various syndicated features , advertises various nationally sold products , and derives annual gross revenues from its publishing operations of more than $200,000 . I find and conclude that the Respondent is now and has been at all material times an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to entertain jurisdiction of this case. II. THE LABOR ORGANIZATIONS INVOLVED Each of the four Unions named in the above case captions which are hereinafter collectively referred to as the Unions and individually (in the order of the foregoing references) as the Teamsters , the Pressmen, the Paperhandlers , and the Mailers, is a labor organization within the meaning of the Act. III. THE UNFAIR PRACTICES A. The Respondent's Payment of Christmas Bonuses and the Arguments of the Parties with Respect Thereto For many years, the Respondent has negotiated and executed a continuous series of separate contracts with eight labor unions, including the four Charging Unions, each contract covering a different, admittedly appropriate, bargaining unit of its employees duly represented by one of these Unions as provided by Section 9(a) and (b) of the Act.' There has never been a strike by any of Respondent's employees, nor, before the instant cases, have unfair labor practice charges been filed against the Respondent, nor, for that matter, by the Respondent against any of the Unions. In instances in which a contract has expired before agreement was reached on the succeeding contract, the employees have continued their work and when the new contract was executed, wage increases were made retroactive to the expiration date of the old contract. Since 1960 (and perhaps even before 1960), the contracts with the four Charging Unions have been 2-year contracts, beginning and ending not later than October 1, in each of the even-numbered years; i.e., 1962, 1964, and 1966. None of the contracts with any of the Unions has even referred to, much less provided for or attempted to formularize or otherwise regularize, a Christmas bonus which the Respondent itself initiated and has been paying for at least the last 20 years. In each of these years, the Respondent has decided in late November or early December to pay the bonus on a selected payroll date just before Christmas. Before 1961, when the employees were receiving their pay in cash, the additional amount of the bonus was also paid to them in cash in a separate "Christmas" envelope but without any other written notation, memorandum, or expression accompanying the payment. Beginning in 1961, by which time the employees were being paid their wages by check, the bonus has been paid by a separate, embossed "Christmas" bonus check ' There is no dispute as to the appropriateness of these units To avoid unnecessary, lengthy repetition, their descriptions are 735 and has been accompanied by a letter from John S. Knight, the Respondent's publisher, expressing the season's greetings, and stressing the fact that the bonus was "voluntary." No prior announcement or notice of the bonus has ever been given to the employees or the Unions, and the Respondent, without consulting the Unions, has made its own determination who the beneficiaries were to be and what amounts they were to receive. In accordance with this determination, except for employees in the first year of a military leave, the bonus has been paid each year only to executives and both salaried and hourly rated employees who were actually on the Respondent's payroll on the distribution date. Employees in the first year of a military leave on the distribution were paid half of the full bonus. Otherwise no bonus has been paid to any recent employee whose employment had terminated before the distribution date, although he might have worked for the Respondent since the beginning of the year or for a great portion of the year. Even as to current employees with less than a year's service, the Respondent decided whether each of these individuals was to receive any bonus at all, or, if he were to be paid a reduced bonus, what the amount of that bonus was to be. Finally, the Respondent paid no bonus at all to any current employee, even though he had worked for the Respondent throughout the year, when in its opinion his record of absences without satisfactory explanation had been excessive. Until Christmas 1965, the full bonus of an employee, as determined and paid by the Respondent, has been the equivalent of 2 weeks' pay at the wage rate actually being paid to him on the distribution date. No retroactive supplement of the bonus has ever been paid to an employee as the result of a retroactive increase of his pay rate in a belatedly executed contract. Consequently, at Christmas in 1964, the bonuses were paid on the basis of the wage rates of the 1962-1964 contract, and were not later adjusted to correspond with the higher rates retroactively applied to increase the employees' December 1964 wages under the 1964-1966 contracts. At Christmas in 1965, the full bonus paid by the Respondent to an employee amounted to 2 weeks' pay at his actual December 1963 and 1964 pay rates and thus fell short of the 2 weeks' pay he was receiving in December 1965 under the increased pay rates of the 1964-1966 contracts. By thus maintaining the lower 1963 dollar level of the bonus, the Respondent departed from its previous practice of granting Christmas bonuses of 2 weeks' pay at currently paid rates. Moreover, the Respondent gave no prior notice of this intended departure from its previous practice to either the employees or the Unions. Between January and March 1966 each of the Unions wrote the Respondent a letter protesting this unilateral departure from practice and asked the Respondent to confer with them. Representatives of the Respondent thereupon met separately with the representatives of each Union but refused to discuss their determination of the amount of the 1965 Christmas bonus, saying simply that the bonus "had been a voluntary thing all along," that "it was becoming quite expensive," and that "we couldn't make any promises that it was going to be paid in the future because we haven't been able to make any promises set forth only in the later section of this Decision entitled "Conclusions of Law " 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it was going to be paid in the past."2 The General Counsel and the Unions contend, in substance, that Christmas bonuses generally, and particularly one which has been repeatedly paid to employees over so long a period of years, constitute "wages" or at least "conditions of employment" within the meaning of Sections 8(d) and 9(a) of the Act; that they are therefore mandatory subjects of bargaining within the intendment of these sections and Section 8(a)(5); and, consequently that the Respondent's uniateral modification of the base of its 1965 Christmas bonus was in derogation of its bargaining obligation, amounted to a refusal to bargain, and was an unfair labor practice within the meaning of Section 8(a)(1) and (5). However, the Respondent contends, but the General Counsel and the Union deny, that the Unions waived their right and the employees' right to bargain about the bonus, by standing by and permitting the Respondent to continue its "voluntary" practice with respect to the bonus instead of insisting upon the inclusion of a regularizing bonus provision in their contracts with the Respondent, and by accepting so-called "zipper" clauses in their 1962 and 1964 contracts. B. Bargaining Between the Parties and the "Zipper" Clauses in the 1962 and 1964 Contracts As noted, none of the Respondent's contracts with the Unions has referred to the Christmas bonus. Nor, over the years, have there been more than two occasions on which the parties have talked at all about the bonus in their negotiations . The first occurred in 1955 or 1956 and the last during negotiations of the 1962 contracts. All of these specific references to the Christmas bonus occurred only in the course of the Respondent's negotiations with the Mailers, although the 1962 instances coincided with the Respondent's inclusion in all its contracts of the "zipper" clause which it claims has removed the bonus from the bargainable area. The 1955 or 1956 reference to the bonus was made by Miller, one of the Respondent's representatives, in negotiating wage scales with the Mailers. In comparing the Respondent's rates with what the Mailers said were the higher rates "in other towns," Miller told the Mailers' representatives that "we should strike the overall wages that we are getting now by multiplying our weekly rates by 54 instead of the customary 52 to get a true picture of income ... [because] we were getting two weeks bonus each year." As noted, during the negotiation of the 1962 contracts (which was apparently completed sometime in 1963), the Mailers in their separate negotiations with the Respondent proposed a clause making the Christmas bonus a part of its contract, and the Respondent proposed the "zipper" clause to all the Unions. It appears from the testimony of Charles Clark, the Respondent 's business manager, that the Respondent's original "zipper" proposal actually preceded the Mailers' bonus proposal. Furthermore the Mailers' proposal, which is in evidence but is undated, refers not only to the bonus but also to "verbal agreements to be entered into the contract" which were of the general type which the Respondent claims it told the Unions' representatives would otherwise be eliminated by the "zipper" clause. Accordingly, consideration will be given primarily to the Respondent's "zipper" proposal and the form in which it became a part of the Respondent's 1962 and 1964 contracts with all the Unions, with incidental attention to the positions taken with respect thereto by the Respondent and the Unions including the Mailers' proposal of a Christmas bonus clause. The Respondent's original "zipper" proposal was that its contracts with the Unions include the following clause: There are no oral or verbal agreements or any other agreements or understandings relating to the matters set forth in the contract / or to matters not set forth therein which may or could have been provided therein. But, after discussing with the Unions' representatives the latter's objections to such a clause, the Respondent eventually proposed the following language and, despite the Unions' continuing objections, it was incorporated in all the Respondent's 1962 and 1964 contracts with the Unions: This contract is complete in itself and sets forth all the terms and conditions of the agreement between the parties hereto. In making its 1962 "zipper" proposal to the Unions, the Respondent explained, as Business Manager Clark testified, that "we wanted no more side agreements and that we wanted to negotiate any working conditions or contractual obligations that we had with them into the contract." The Respondent also told the Unions that "if they had anything that belonged in the contract that we wanted to negotiate it and if we agreed we would put it into the contract. If we did not [agree] ... there would be no more verbal agreements or understandings." The Unions all protested the breadth of the Respondent's proposal. As John Bond, the Teamsters' representative, testified they told the Respondent they felt that "we were the ones with more of these oral agreements in the contract ... that we wouldn't be waiving any of our rights to any of the agreements that we have had, that we may have overlooked just because of the clause that they insisted upon.'" According to Business Manager Clark, the 1962 negotiations "were prolonged somewhat because we allowed the Unions sufficient time to dig up these things that they wanted to propose." On its side, too, the Respondent proposed a 13-week sick pay limitation or "Topper" because it wanted to exclude all possibly inconsistent side agreements with respect to this matter. The Teamsters (but apparently not the Pressmen nor the Paperhandlers) asked that certain previous "side" agreements be thenceforth incorporated (and they were ' The instant findings are based upon the testimony of Charles Clark (the Respondent's business manager) and John Bond (the Teamster's secretary-treasurer) and also a stipulation by counsel that if called, witnesses representing the charging Unions other than the Mailers would give testimony similar to that of Bond on behalf of their respective Unions The testimony of Gelbert Beorn (then the Mailers' president ) does not present any significant inconsistency, for he testified that at the Mailers' 1966 meeting with the Respondent, the Respondent's spokesman merely said that he could not say anything more than that there was "a law suit pending with the International Typographical Union," an apparent reference to the fact that the union thus named, which is not one of the Charging Parties in the present cases before the Board, was seeking an injunction in the Federal court to compel the Respondent's arbitration of matters arising out of the 1965 Christmas bonus ' Here again, the instant finding is based not only upon the testimony of Bond but also upon the stipulation of counsel which has already been referred to in fn 2, supra THE BEACON JOURNAL PUBLISHING CO. incorporated) in the contract, with respect to guaranteed holiday and other work. Only the Mailers made any proposal with respect to the Christmas bonus. Thus, the Mailers made not only a set of proposals as to other "verbal agreements" which they wanted in the contract but also a separately stated proposal to the effect that "All situation Holders with one year's service or more shall receive two weeks' pay as a Christmas bonus." With respect to this last proposal, the Respondent's representative told the Mailers (as Respondent's Business Manager Clark testified and I find), that the Christmas bonus "had always been a voluntary matter and ... [the Respondent] didn't feel that it belonged in the contract. We had no reason to believe that it would not be paid in the future ... just as we didn't know if it would be paid in the past. Inasmuch as it [was] a discretionary item, we felt that we didn't want it in the contract." The testimony of Mailers' President George was substantially to the same effect, but he further testified without contradiction, and I find, that Mechanical Superintendent Jim Curry, who was one of the Respondent's negotiators also said that "It was Top Management's privilege whether or not they wanted to pay it. But as far as he thought ... [turning to Clark], he didn't have any idea of ... the bonus being stopped or being altered." George further testified, and I credit his testimony, that Curry also "specifically said that they wanted that so-called zipper clause `as an incidental clause.' They did not put any significance or importance on it except for one reason. That was to put a topper on the sick pay."4 In this posture of the 1962 negotiations between the Respondent and the Unions, the Respondent rejected the Mailers' Christmas bonus proposal and insisted upon the inclusion of the "zipper" clause in all its contracts with the Unions. As a result, the 1962 and the 1964 contracts with all the Unions have included the "zipper" clause and none of them has contained a provision with respect to, or even mentioning, Christmas bonuses. C. Conclusions By reason of the Respondent's long-established practice " Business Manager Clark, the Respondent's only witness, testified that although the Respondent wanted the 13-week sick pay "topper" and the "zipper" clause to be understood as excluding all inconsistent "side" agreements as to the maximum duration of sick pay, it also wanted the eventual "zipper" clause to be understood as a complete waiver of all "side" agreements not included in the contract He did not testify, however, that he made any such statement to the Mailers , nor as to whether in the course of the negotiations concerning the Mailers ' bonus proposal and the Respondent 's "zipper" proposal, Superintendent Curry made the statements attributed to him by George and found in the text. I have therefore credited George's testimony and made the above findings as being relevant to the question of whether in the light of the discussion and negotiation of the clause by the parties, it can be said that the Unions clearly indicated an intention to waive their right to insist upon the Respondent 's bargaining as to the Christmas bonus in the future N.L R B v Niles-Bement-Pond Company, 199 F 2d 713 (C A 2), enfg 97 N L R B 165, General Telephone Co. of Florida v N L R B , 337 F 2d 452 (C A 5), modifying and enfg 144 NLRB 311, N L R B v Exchange Parts Co , 339 F 2d 829 (C A 5), enfg 139 NLRB 710, N L R B v Citizens Hotel Company, 326 F 2d 501 (C A 5), enfg in pertinent part 138 NLRB 706. Tucker Steel Corporation, 134 NLRB 323, Stark Ceramics, Inc, 155 NLRB 1258 6 Respondent's counsel has in effect stated this to be his position both in the hearing and in his brief In the hearing, he said: 737 of paying the Christmas bonus with which we are concerned in the present case, the bonus has become a part of the employees' wages and a "condition of employment," and is therefore a mandatory subject of bargaining under the Act. So the Board and the courts have held in finding in similar cases that an employer commits an unfair labor practice within the meaning of Section 8(a)(5) of the Act either by refusing to bargain about such a bonus at the request of a union qualified to represent his employees as their exclusive bargaining agent, or by failing to notify and (if then requested) to bargain with the representative union before terminating or modifying his own voluntary, long-continued practice of paying the bonus 5 Counsel for the Respondent does not challenge the validity of these propositions. Nor would he dispute their application to the Respondent's unilaterial action in the present case, were it not for what he contends, but the General Counsel denies, was the Unions' waiver of their right to bargain about the bonus as shown by their continuing acquiescence to the Respondent's openly unilateral, "voluntary" and "discretionary" practice with respect to the payment of the bonus each year, by their failure to insist upon a bonus provision in their contracts, and by their acceptance of the "zipper" clause in the 1962 and 1964 contracts.6 The disputed issue in the present case, therefore, has narrowed down to this question of whether there was a waiver of bargaining by the Unions. On this issue, the decisions of the Board and the courts which apply to the facts found in the present case support the positions of the General Counsel and the Unions rather than that of the Respondent. Observing the clear Congressional policy of the Act in providing mandatory collective bargaining as the substitute for strikes in the solution of industrial disputes, the Board and the courts have dealt cautiously with asserted waivers of bargaining rights. Consequently, a union 's waiver of a bargaining right, whether by contract or the position the union has taken or failed to take in dealing with the employer, will not be lightly inferred but I don't dispute that the payment of this bonus was a proper subject of bargaining My position is that these Unions had the opportunity, [they] waived the right to bargain on it on numerous occasions , and the employees treated it as though it was a gift rather than a bargainable subject In his brief, Respondent's counsel has restated the same limited position. Respondent admittedly has paid the Christmas bonus on the basis of two weeks pay with sufficient regularity that any change in the method of computation would generally be conceded to be a bargainable subject Respondent advisedly uses the word "generally" since here it respectfully submits that by the conduct of the parties and by the history of bargaining with respect not only to the Christmas bonus at issue, but also to other benefits paid by the Respondent from time to time to its employees, the Charging Parties had waived any right to bargain with respect to the bonus Accordingly, Respondent's counsel has directed the entire argument in his brief to this asserted waiver He makes no -argument that the particular Christmas bonus in the present case had not become part of the employees' compensation nor a "condition" of their employment because of the Respondent's repeatedly and openly stated attempt to reserve a unilateral right to determine each year whether, to whom, and in what amounts it would pay the bonus Nor does he argue on this basis or any other basis that (even had there been no waiver) the bonus was not "wages," a "condition of employment ," nor therefore a mandatory subject for bargaining 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD must be "clear and unmistakable."7 Applying this general principle to the facts in the present case (as the Board has in similar cases), I find that the Unions did not waive their right to bargain about the Respondent's Christmas bonus by their failure to object to the Respondent's open treatment of the bonus as a discretionary, "voluntary" payment subject to its unilateral determination and control," by making no proposal (other than the Mailers' 1962 proposal which the Respondent rejected) that a provision relating to the bonus be incorporated in their contracts or by accepting and executing contracts with the Respondent none of which contained a bonus provision."' There remains for consideration the possible significance of the Mailers' unsuccessful attempt to secure a contractual provision relating to the Christmas bonus during the 1962 negotiations, and also all four Unions' acceptance of the "zipper" provision in the 1962 and 1964 contracts. Upon the following consideration of the decisions and the facts of the present case, neither of these matters appears to furnish a basis for a finding that the Unions waived their rights to bargain about the Christmas bonus. Here again, the Board has shown its caution against unduly limiting collective bargaining and has been unwilling to infer anything but a "clear and unmistakable" bargaining waiver from a union's failure to insist upon a contract proposal covering a bargainable subject after the proposal has been rejected by the employer, or from a generally phrased contractual "zipper" provision which an employer asserts has conferred upon him the right of unilateral action. In the first of these two general types of situations, the Board has refused to find a bargaining waiver by the union as to the subject matter of its rejected proposal "unless it can be said from an evaluation of the .. negotiations that the matter was `fully discussed' or consciously explored' and the union `consciously yielded' or clearly and unmistakably waived its interest in the matter."" In the second type of situation, the Board has refused to find a bargaining waiver by the union, and therefore an assent to the employer's right to unilateral action, unless the contract provision in question expressly or by necessary implication confers such a right.'" Accordingly, the Board will not infer a union waiver of its bargaining right as to a particular subject not mentioned in the contract merely because a broadly worded "zipper" provision limits the employees' terms and conditions of employment to those set forth in the contract, but will consider the intent of the parties as shown by them in their negotiations.'' With respect to the Mailers' unsuccessful 1962 attempt to incorporate a Christmas bonus provision in their contract, it does not appear from the evidence that the matter was "fully discussed" and that the Mailers "consciously yielded" and clearly and unmistakably waived its interest in bargaining about the bonus and insisting that the bonus continue to be paid in accordance with the Respondent's uninterrupted practice. From the evidence, no more can be said than that the Mailers apparently did not want the general negotiations to founder because of an insistence on its part upon a contractual provision, and that it was reassured by Curry's statement that the Respondent had no intention of discontinuing its bonus payments. It cannot be said that the Mailers intended to give up their right to bargain about the bonus if, as happened several years later, the Respondent should change its mind and modify its bonus practice. Nor does the Unions' acceptance of the "zipper" clause in the 1962 and 1964 contracts warrant an inference of a "clear and unmistakable" waiver of future bargaining concerning the Christmas bonus during the terms of these contracts. The Respondent's original proposal was much more sweeping than its later proposal which was accepted by the Unions and became part of the contracts. Its language purported to eliminate all "oral or verbal agreements or understandings," not only "as to matters set forth in the contract," but also as to other matters "which may or could have been provided herein." But the eventually proposed and adopted clause abandoned this radically exclusionary language and provided merely that "this contract is complete in itself" and that it "sets forth all the terms and conditions of the agreement between the parties ." What had apparently happened in the course of negotiating and eventually adopting this milder clause is also significant. Although the Respondent had told the Unions it wanted the "zipper" clause in order to eliminate the "verbal agreements and understandings" (thus using the terminology of the original proposal) and that the Unions should propose the incorporation of matters they wanted in the contract, the Unions objected, stating that they had more to lose than the Respondent by overlooking extracontractual matters of importance to them. Furthermore, except in the case of the Mailers, the negotiating parties made no mention of the Christmas bonus. And, in the case of the Mailers, the agreement to adopt the comparatively mild "zipper" clause was reached, only after Curry, one of the Respondent's representatives, assured the Mailers that the Respondent had no "idea of ... the bonus being stopped or being altered," and that the only reason the Respondent wanted the "zipper" clause was "to put a topper on the sick pay." In view of all this, I cannot find that the Unions' acceptance of the "zipper" clause was a clear and unmistakable waiver by the Unions of their right to bargain with the Respondent concerning the Christmas bonus. In sum, for the foregoing reasons, and contrary to the Respondent 's arguments , I conclude that the Unions in the present case did not waive their right to bargain with the Respondent concerning the Christmas bonus, and that, by modifying its base for the 1965 Christmas bonus without first notifying the Unions and giving them an opportunity to bargain, the Respondent refused to bargain with the Unions about a mandatory subject of bargaining and committed an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. ' The Timken Roller Bearing Co v N L R B , 325 F 2d 746, 751 (C A 6), cert denied 376 U S 971, N L R B v Perkins Machine Company, 326 F 2d 488 (C A 1), N L R B v The Item Company, 220 F 2d 956,958-959 (C A 5), cert denied 350 U S 836 " See the General Telephone Co of Florida and the Citizens Hotel cases, supra The Press Company Incorporated, 121 NLRB 976,977-980 "Smith Cabinet Manufacturing Company, Inc , 147 NLRB 1506 " The Press Company Inc , supra '' General Motors Corp , 149 NLRB 396, 399-400. Smith Cabinet Manufacturing Company, Inc, 147 NLRB 1506, New York Mirror, 151 NLRB 834,839-840 ''New York Mirror, supra, at 837, 840, International Union of Electrical, Radio and Machine Workers, AFL-CIO v General Electric Co , 332 F 2d 485,489 (C A 2) THE BEACON JOURNAL PUBLISHING CO. 739 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, occurring in connection with the business operations of the Respondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I will recommend that it cease and desist therefrom and, upon request, bargain collectively concerning the Christmas bonus with the Charging Unions as the exclusive representative of all the employees in their respective appropriate units. The Respondent's unfair labor practices consisted of its unilateral modification of the basic Christmas bonus formula in 1965 by its payment of full bonuses of less than the previous bonuses of 2 weeks' pay at current wage rates. Since it has been found that the Christmas bonus payments constitute wages within the meaning of the Act, the bonuses were benefits enjoyed by the employees, and their reduction was a detriment to the employees. It is the Board's customary policy to direct a respondent to restore the status quo where respondent has taken unlawful unilateral action to the detriment of its employees 14 Accordingly, I will recommend that the Respondent make whole all employees in the appropriate units represented by the Charging Unions by paying them the difference between what the Respondent paid them as their Christmas bonuses in December 1965 and what the Respondent would have paid them had it not modified its previous practice and basic formula. Furthermore, in accordance with the Board's normal practice, it will be recommended that the backpay awards be paid with interest at 6 percent per annum, to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. As found and fully described in section II above, Teamsters, Pressmen, Paperhandlers, and Mailers are labor organizations within the meaning of the Act. 2. At all material times including December 1965, the foregoing labor organizations have been the exclusive representatives of all the Respondent's employees in each of the following units appropriate for the purposes of collective bargaining within the meaning of Section 9(a) and (b) of the Act: a. Teamsters: All truck delivery drivers, district managers, and street supply managers at the Respondent's Akron, Ohio, operations, excluding all production and maintenance employees, office clerical employees and guards, professional employees, and supervisors as defined in the Act. b. Pressmen: All printing pressmen, their assistants and apprentices at the Respondent's Akron, Ohio, 'a See General Telephone Co of Florida, supra, at316 operations, excluding all office clerical employees and guards, professional employees, and supervisors as defined in the Act. c. Paperhandlers: All paperhandlers and paperhandler learners at the Respondent's Akron, Ohio, operations, excluding all office clerical employees and guards, professional employees, and supervisors as defined in the Act. d. Mailers- All mailers and their apprentices at the Respondent's Akron, Ohio, operations, excluding all office clerical employees and guards, professional employees, and supervisors as defined in the Act. 3. By unilaterally modifying and altering its formula for the payment of a Christmas bonus to its employees without bargaining collectively with the above-named labor organizations as the exclusive representatives of the employees in each of the aforesaid appropriate units, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, it is recommended that the Respondent, The Beacon Journal Publishing Company, an Ohio corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Refusing or failing to bargain collectively with Newspaper Delivery Drivers, Chauffeurs and Handlers Local Union No 163, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America: Akron Printing Pressmen and Assistants Union Local No 42, International Printing Pressmen and Assistants Union of North America, AFL-CIO; Akron Paperhandlers Local No 7, International Printing Pressmen and Assistants Union of North America, AFL-CIO: and Local No. 82, Akron Maileis Union, affiliated with the International Mailers Union, concerning the payment of Christmas bonuses to its employees within the respective appropriate unit represented by each of said Unions (b) Unilaterally modifying or altering its formula for the payment of Christmas bonuses to its employees within each of the appropriate units represented by the aforesaid Unions. (c) In any like or related manner interfering with the efforts of any of the aforesaid Unions to bargain collectively. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, bargain collectively with each of the aforesaid Unions concerning the payment of Christmas bonuses to employees within the appropriate unit represented by the particular Union. (b) Make whole the eligible employees in each of the aforesaid appropriate units in December 1965 for any loss they may have suffered by reason of the Respondent's modification or alteration of its Christmas bonus formula, in the manner set forth in the section of the Trial Examiner's Decision and Order entitled "The Remedy." (c) Post at its plant in Akron, Ohio, copies of the 298-668 0-69-48 740 DECISIONS OF NATIONAL attached notice marked "Appendix."15 Copies of said notice to be furnished by the Regional Director for Region 8, shall, after being signed by a representative of the Respondent be posted by it immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision and Recommended Order what steps the Respondent has taken to comply herewith. is '' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL, upon request, bargain with Newspaper Delivery Drivers, Chauffeurs and Handlers Local Union No. 163, affiliated with International Brother- LABOR RELATIONS BOARD hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America; Akron Printing Pressmen and Assistants Union Local No. 42, International Printing Pressmen and Assistants Union of North America, AFL-CIO; Akron Paperhandlers Local No. 7, International Printing Pressmen and Assistants Union of North America, AFL-CIO; and Local No. 82, Akron Mailers Union, affiliated with The International Mailers Union as the exclusive representative of all the employees in the bargaining unit represented by each of the foregoing labor organizations, with respect to the payment of Christmas bonuses to employees within each of the appropriate units thus represented by said Unions. WE WILL make whole the eligible employees in each of the aforesaid appropriate units for any loss they may have suffered by reason of our unilateral modification or alteration of our Christmas bonus formula in December 1965. WE WILL NOT in any like or related manner interfere with our employees' rights as guaranteed in the Act. THE BEACON JOURNAL PUBLISHING COMPANY (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465.