Swift Service Stores, Inc.

SWIFT SERVICE STORES Swift Service Stores, Inc. AKA Swift Cleaning & Laundry Company and Laundry, Dry Cleaning and Dye House Workers International Union, Local No. 1, affiliated with International Brother- hood of Teamsters,, Chauffeurs, Warehousemen and Helpers of America. Cases 8-CA-4379 and 8-CA-4134 January 26, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING,ROWN, AND ZAGORIA On May 24, 1967, Trial Examiner John F. Funke issued his Decision in the above-entitled proceed- ing, finding that 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 attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the General Counsel, the Charging Par- ty, and Respondent filed exceptions to the Trial Ex- aminer's Decision and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made by the Trial Examiner at the hear- ing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. There is no dispute as to the essential facts. They relate to Respondent's denial of the annual Christ- mas bonus to 95 employees at its Euclid Avenue, Cleveland, Ohio, plant. The employees at the plant perform drycleaning and laundry services. For 16 years Respondent has voluntarily paid a bonus at Christmastime to qualifying employees under the Swift Recognition Bonus Plan devised by Respondent. Its president testified that the bonus was intended to produce quality work. Payment under the bonus plan has depended on a point score based on attendance, punctuality, good workman- ship, and attitude on the job. Respondent awards the points to each employee at the end of every month and posts the scores on the bulletin board. It keeps a cumulative score of the monthly points awarded upon which it bases the bonus payment at Christmastime. A principal provision in the plan in effect for 1965 was that "an employee to be eligible 1 Respondent did pay the Christmas bonus to nonstriking employees at its Carnegie Avenue plant and to its store managers , warehousemen, and office employees. 2 N.L.R.B. v Great Dane Trailers, Inc., 388 U S. 26; N.L.R.B. v. Erie 359 for a Christmas bonus must be in our employ on December 24 and prior to November 1, 1965." The plan contains a disqualification clause which reads: In the event of a work slow-down or stoppage, any employee involved in such work slow- down or stoppage will forfeit all bonus points earned, and will be ineligible for a Christmas bonus check. The production employees at the Euclid Avenue plant engaged in a work stoppage on April 6, 1965 - a 1-day strike preceding a new contract agree- ment. On the following day, when they returned to work, Respondent removed the bonus scores from the bulletin board and did not again post any scores during 1965. The employees knew of the removal of the bonus scores. At Christmastime Respondent did not pay a bonus to its production employees at the Euclid Avenue plant.' In response to the Union's inquiry why the bonus had not been paid, the Employer's attorney wrote, on January 7, 1966, that, under the disqualifying work stoppage clause, "all employees involved and participating in that [union called] work stoppage, therefore, forfeited their 1965 bonus points and were ineligible for Christmas bonus checks for the year 1965." The letter added that the bonus plan had been reinstated for 1966. The Union then filed an unfair labor practice charge in January 1966, alleging discrimination in the withholding of the 1965 Christmas bonus (Case 8-CA-4134), It filed another charge in a second case in October 1966 alleging discrimination in Respondent's maintenance of the forfeiture clause in the 1966 bonus plan (Case 8-CA-4379): The General Counsel issued complaints in both cases. 1. The Trial Examiner found that Respondent's maintenance of the clause in the bonus plan that disqualified employees who engaged in a work stop- page discriminated against employees in violation of Section 8(a)(3) and (1) of the Act. Respondent ar- gues that the offending clause was based on sound business practices and not prompted by union animus; that it was directed only against unlawful strikes; and that in any event it has been discon- tinued. We hold, as did the Trial Examiner, that the disqualifying or forfeiture clause was inherently discriminatory in that the bonus payment was con- ditioned on the employees' refraining from lawful protected strike activity.2 The clause therefore vio- lated Section 8(a)(3) and (1) of the Act even if Respondent's business motivation and lack of union animus be assumed, for good faith cannot excuse conduct otherwise unlawful.3 A contrary view Resistor Corp, 373 U S 221, 227-228, 229; Melville Confections, Inc., 142 NLRB 1334, enfd. 327 F 2d 689 (C A 7), cert. denied 377 U.S. 993 3 N.L.R.B. v. Erie Resistor Corp., supra, In. 8, at 229-230. 169 NLRB No. 33 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would override the statutory protection accorded lawful strike activity. Contrary to Respondent's assertion , we find that the clause was directed at lawful strike activity, as occurred in this case. There is no evidence to show that the employees' strike activity was unlawful.4 Respondent's revision of the clause so as to remove the disqualification for striking does not warrant dismissal of the allegation as to the dis- crimination in maintaining the clause. Respondent's revision of the plan - subsequent to the filing of the charge - did not eliminate the adverse effect upon employees' protected activities of its prior conduct in maintaining and giving effect to the clause. Moreover, Respondent continues to insist on the legality of the disqualifying clause and its conduct thereunder. Without a Board order prohibiting its il- legal conduct, it would be free to reinstate the clause. We therefore find that the issues are not moot and that the violations found require issuance of a remedial order. 2. Although the Trial Examiner found that Respondent's refusal to pay a bonus to those of its production employees who engaged in a work stop- page in 1965 was discriminatory, he dismissed the charge because he considered the unfair labor prac- tice of withholding the bonus to have occurred "more than six months prior to the filing of the charge."5 He held that, as Respondent removed the bonus scores and advised the employees in April 1965 that it would not pay the Christmas bonus, the illegal discrimination occurred in April 1965, and that the charge filed in January 1966 was therefore too late. The General Counsel and the Union contend that the January 1966 charge in Case 8-CA-4134 was timely filed: that the unfair labor-practice occurred in December 1965, when Respondent refused to pay the bonuses - less than 6 months prior to the fil- ing of the charge.6 We agree with this contention 4 Respondent contends that the Union struck Respondent and another employer, both part of a multiemployer unit, and that the Trial Examiner erroneously excluded questions that would have elicited evidence that the Union intended to strike the employers in whipsaw fashion . We find no error in the Trial Examiner's sustaining the General Counsel's objection to Respondent's questions . The statutory protection in Section 7 and 13 is not diminished by the sort of intent Respondent would impute to the Charging Union. This is so though the statute does not outlaw employer self-help through lockout action as a defense to a strike during contract negotiations against some members of a multiemployer bargaining as- sociation when such strike threatens the employer's common interests. N.L.R.B. v. Truck Drivers Local 449 [Buffalo Linen Supply Co.], 353 U.S. 87. However, such a strike is not unlawful. Section 10(b) of the Act provides in pertinent part: ... no complaint shall issue based upon any unfair labor practice oc- curring more than six months prior to the filing of the charge with the Board .... 6 There is no issue respecting the timely filing of the charge in Case 8-CA-4379. The Union' s charge in that case, filed October 6, 1966, al- leged the continued maintenance of the forfeiture clause as violative of the Act. The bonus plan with the discriminatory forfeiture clause continued in effect to the very day theUnion filed its charge. ' Electric Steam Radiator Corporation, Inc., 136 NLRB 923, 926, enfd. 321 F.2d 733 (C.A. 6); Jim O'Donnell, Inc., 123 NLRB 1639, 1647. and reverse the Trial Examiner's holding to the con- trary. Although finding that the maintenance of the dis- criminatory forfeiture clause was a continuing violation, the Trial Examiner in effect ignored that finding in viewing Respondent's unfair labor prac- tice in withholding the bonus as having occurred in April rather than December, the time of the year when Respondent had always paid the bonus. It is true that by announcing to employees in April that Respondent would not pay the regular annual bonus, Respondent engaged in conduct condemned by Section 8(a)(3) and (1) of the Act.7 But this does not negate the fact that the Respondent's failure to pay the bonus in December was also a violation of Section 8(a)(3) and (1). The Union complained only of the nonpayment of the bonus and the continua- tion of the forfeiture clause. Under the terms of the plan, the bonus did not become payable until December. The plan provided for employees' earning their bonus money month- by-month until Christmas; Respondent determined the total number of points at Christmas; eligibility depended on an employee being in the Respon- dent's employ "on December 24 and prior to November 1, 1965"; the forfeiture clause remained threateningly in force until Christmas. Respond- ent's discriminatory injury to the employees oc- curred when the employees, having met every con- dition of eligibility - except for their work stoppage - were not paid the bonus on the date the bonus plan entitled them to receive payment. But for their strike, the Euclid Avenue employees would have received the 1965 Christmas bonus on December 24, 1965, just as they had for the previous 16 years at Christmas, and just as did the Carnegie Avenue and store employees who did not strike. Therefore it was on December 24 that Respondent, by not paying the bonus, discriminated against its em- ployees within the meaning of Section 8(a)(3).8 e Jim O'Donnell, Inc., supra, holding that Section 10(b) began to run .when the employer terminated the participation of employees in its pen- sion plan (which disqualified union members ) rather than from some earli- er time- outside the 10(b) period-when employees became aware of the disqualifying provision and the employer 's intention to disqualify them from the plan's benefits . See also Great Lakes Carbon Corporation, 152 NLRB 988, enfd . 360 F.2d 22 (C.A. 4); Whiting Milk Corporation, 145 NLRB 1035, enforcement denied on other grounds 342 F.2d (C.A. 1); and Potlatch Forests Inc., 87 NLRB 1193, enforcement denied on other grounds 189 F.2d 82, (C.A. 9), all holding that a contract 's seniority provi- sion that was illegal on its face was a violation of Section 8(a)(3) and (1), so that its enforcement during a period within 6 months before the filing of the charge was also unlawful. In Bowen Products Corporation, 113 NLRB 731, relied on by Re- spondent , a majority of the Board held that Section 10(b) barred the complaint because the alleged unlawful discrimination in layoff could be proved only by events concerning the employer's placement of the em- ployee at the bottom of a seniority list-occurring more than 6 months before the charge was filed . In that case, however, the parties' collective- bargaining contract, on which the violation was predicated , contained a concededly valid seniority provision . In this case, the violation in with- holding 'the bonus rests on enforcement of Respondent 's bonus provision invalid on its face. There is no need to depend on events more than 6 months prior to the filing of the charge to determine the unlawfully dis- criminatory character of Respondent 's conduct in denying the bonus. SWIFT SERVICE STORES 3. The Trial Examiner also held that, even as- suming the unfair labor practice occurred in December 1965, Section 10(b) barred considera- tion thereof because the Regional Director dismissed the January 1966 unfair labor practice charge on March 21, 1966, and the General Coun- sel sustained the dismissal on August 10, 1966. We do not agree. We have found above that the unfair labor prac- tice occurred in December 1965 when Respondent withheld the bonus payments from employees. On January 26, 1966, the Union filed its unfair labor practice charge alleging that Respondent had vio- lated Section 8(a)(1) and (3) by refusing to pay the bonus. On March 21, 1966, the Regional Director informed the parties that he was refusing t o issue a complaint apparently on the erroneous theory that the bonus forfeiture clause was lawful.9 The Union appealed this refusal to issue complaint to the General Counsel. On,August 10, 1966, the General Counsel denied the Union's appeal on the ground that the unfair labor practice had occurred in April 1965 rather than December 1,965.10 On August 26, 1966, the Union filed a request for reconsideration of the General Counsel's denial of the appeal. On February 3, 1967, the General Counsel granted the Union's motion for reconsideration, sustained the appeal, and remanded the case to the Regional Director for appropriate action.11 Thereafter, the Regional Director issued an amended complaint al- 9 The Regional Director 's ruling refusing to issue the complaint read- ... As the bonus plan which has been in effect for approximately 13 years expressly provides that any employee who engages in a work stoppage or slowdown shall forfeit his right to a bonus for that year, the Employer's refusal to pay the bonus to those employees who par- ticipated in the work stoppage on April 7, 1965, was not violative of the Act. Moreover, as the Employer has paid the 65 store employees their 1965 bonus, further proceedings would not effectuate the poli- cies of the Act. I am, therefore , refusing to issue complaint in this matter.... to The General Counsel, in denying the Union's appeal, wrote: ... The appeal is denied. Apart from other considerations , in view of the showing that the Company took affirmative action in April 1965 to effectuate its decision not to pay the Christmas bonus in December 1965, by taking down and thereafter failing to maintain all computa- tions of bonus points necessary to establish amounts of bonus to be paid to employees, and the evidence disclosing that such decision was communicated to the Union more than 6 months prior to the filing of the charge herein, further proceedings herein were barred by Section 10(b) of the Act. The General Counsel, in granting the Union's motion for recon- sideration, wrote. ... The motion is granted and appeal sustained. The denial of the ap- peal from the Regional Director's dismissal of the charge, which did not specifically take issue with the legality of the Company's bonus plan, was predicated solely on Bowen Products Corp., 113 NLRB 731, i.e. that the limitations proviso to Section 10(b) barred the is- suance of complaint since the Company had taken affirmative action in April 1965 to effectuate the decision not to pay the bonus in December 1965 and the Union had had knowledge of such decision and affirmative action , outside the 10(b) period. Subsequently, how- ever, in Case No. 8-CA-4379, on the basis of a charge challenging the validity of the bonus plan, complaint was authorized on a finding that the plan was unlawful on its face. In view of this action, ad- herence to the prior decision in the instant case is deemed unwar- ranted. See Whiting Milk Corp., 145 NLRB 1035, set aside on other 361 leging that the withholding of the bonus payments from employees in December 1965 violated Section 8(a)(3) and (1) of the Act. Neither the Regional Director's refusal to issue a complaint, nor the General Counsel' s sustaining that action on appeal immediately and automati- cally extinguished the unfair labor practice charge. The Board's Rules and Regulations gave the Union the right to appeal the Regional Director's ruling.12 The Union timely pursued this right. While it did so, the charge remained alive and pending. 113 Moreover, "Every tribunal, judicial or administrative, has some power to correct its own errors or otherwise appropriately to modify its judgment, decree, or order."14 "The power to reconsider is inherent in the power to decide."15 Although until recently the Board's Rules and Regulations contained no specific procedure for requesting reconsideration of the General Counsel's ruling on appeal, the General Counsel has always entertained such motions for reconsideration provided the motion was made within a reasonable time after the ruling.16 In the present case the Union filed its request for recon- sideration of the General Counsel's ruling on appeal approximately 16 days after the ruling. We hold, as did the General Counsel, that this constituted a reasonable time in which to request reconsidera- tion. We therefore find that, as the January 1966 un- fair labor practice charge was never extinguished, and as the discrimination in the nonpayment of the grounds, 342 F.2d 8 (C.A. 1). Accordingly, this case is remanded to the Regional Director for appropriate action.... 12 Section 102.19, Rules and Regulations and Statements of Procedure, Series 8, as amended. Revised January 1, 1965. 13 Fant Milling Company, 117 NLRB 1277, 1280, enfd. 272, F.2d 773 (C.A. 5); Western Meat Packers, Inc., 148 NLRB 444,450; The Randall Company, 133 NLRB 289, 290-291. The Trial Examiner's reliance on Koppers Company, Inc., 163 NLRB 517, is misplaced. In that case the Board dismissed a complaint based on the Regional Director's reinstatement of a charge that had been withdrawn 4 months earlier. In that case, unlike the present one, the Charging Party had not appealed from the Regional Director 's refusal to issue a complaint. The Board therefore held that the reinstatement could not be effective as of the date of the original filing of the charge and, as the unfair labor practices had occurred more than 6 months before the at- tempted reinstatement of the charge, Section 10(b) barred consideration thereof. 14 2 Davis, Administrative Law Treatise, p. 606. 11 Albertson v. F.C.C., 182 F.2d 397,399 (C.A.D C.). 11 "When statutes are silent and legislative intent unclear , agencies and reviewing courts must work out the practices and the limits on reopening . Usually the search for a basic principle to guide reopening is futile, the results usually must reflect the needs that are unique to each adminis- trative task. Factors to be weighed are the advantages of repose, the desire for stability, the importance of administrative freedom to reformu- late policy, the extent of party reliance upon the first decision , the degree of care or haste in making the earlier decision, the general equities of each problem." 2 Davis, Administrative Law Treatise, p. 607. The Board's Rules and Regulations , Series 8, as amended, revised July 25, 1967, now expressly provide for reconsideration by the General Counsel of his rulings respecting the issuance of complaints . Generally, the motion for reconsideration must now be filed within 10 days of service of decision. The present rule represents the distillation of the General Counsel's experience . Formerly, there was no specific time limitation in which to file a motion for reconsideration. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Christmas bonus occurred in December 1965, there is no 10(b) bar to the complaint allegation that by withholding the payment of the 1965 Christmas bonus Respondent violated Section 8(a)(3) and (1) of the Act. In view of the foregoing , we find that by withholding the 1965 Christmas bonus from the Euclid Avenue plant employees because they had earlier in the year engaged in a 1-day lawful strike, Respondent violated Section 8(a)(3) and ( 1) of the Act. 17 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of Respondent set forth above, oc- curring in connection with the operations of Respondent as set forth in section I of the Trial Ex- aminer's Decision, has a close, intimate, and sub- stantial relation to trade, traffic, and commerce among. the several States, and tends to lead to labor disputes burdening and obstructing the free flow of commerce. ADDITIONAL CONCLUSIONS OF LAW Add the following as paragraph 2 to the Trial Ex- aminer's Conclusions of Law and renumber present paragraph 2 as 3: "2. By withholding from, and refusing to pay, the regular annual bonus, because the employees had engaged in a lawful strike, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act." THE REMEDY Having found that Respondent discriminatorily withheld from certain of its employees their 1965 Christmas bonus for which they had qualified under the terms of Respondent's bonus plan, we shall require that Respondent pay to each such employee the bonus payment so withheld. Respondent argues that it cannot now determine whether any employee would have earned the bonus in December 1965, as it ceased to record bonus scores in April of that year. We cannot per- mit Respondent to profit from its unfair labor prac- tice. Restitution is the only appropriate remedy in this case. The amount can be determined in the compliance stage of this proceeding by agreement of the parties, or, if an agreement cannot be reached, in a backpay proceeding. The amount due to each such employee shall bear interest at the rate 19 See the cases cited in fn. 2, supra. 18 American Fire Apparatus Company, 160 NLRB 1318, enfd. 380 F.2d 1005 (C.A. 8). 19 In the event that this Order is enforced by a decree of a United States of 6 percent per annum from December 24, 1965, the date such bonus was payable under provisions of the bonus plan. t a We shall also order that Respondent, upon request, make available to the Board or its agents, for inspection and reproduction, all books and records necessary or helpful in determining the bonus amounts due. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Swift Service Stores, Inc., AKA Swift Cleaning & Laundry Company, Cleveland, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining or giving effect to the clause in its bonus plan which provides that employees who engage in a lawful work stoppage shall forfeit their annual Christmas bonus. (b) Discouraging membership in Laundry, Dry Cleaning and Dye House Workers International Union, Local No. 1, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by withholding or refusing to pay the regular annual bonus customarily paid to its production employees at its Euclid Avenue plant. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exer- cise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds is necessary to effectuate the poli- cies of the Act: (a) Pay to the eligible employees at the Euclid Avenue plant the amounts due them under the 1965 Christmas bonus plan, to be computed in the manner set forth in the section of this Decision and Order entitled "The Remedy". (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amounts due under the terms of this Order. (c) Post at its plants and stores at Cleveland, Ohio, copies of the attached notice marked "Appendix."19 Copies of said notice, on forms pro- vided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." - SWIFT SERVICE STORES days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, a-. amended, we hereby notify our employees that: WE WILL NOT maintain or give effect to a provision in our Christmas bonus plan which requires employees to forfeit the bonus if they engage in a lawful work stoppage. WE WILL NOT discriminate against our em- ployees by withholding a Christmas bonus from our employees because they have en- gaged in a work stoppage or other union or con- certed activity for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL pay the 1965 Christmas bonus to our employees at our Euclid Avenue plant with interest at 6 percent from December 24, 1965. SWIFT SERVICE STORES, INC., AKA SWIFT CLEANING & LAUNDRY COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive 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, Federal Office Building, Room 1695, 1240 East 9th St., Cleveland, Ohio 44199, Telephone 522-3738. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 363 JOHN F. FUNKE, Trial Examiner: Upon a charge filed January 26 , 1966, in Case 8-CA-4134 and a charge filed October 6 , 1966, in Case 8-CA-4379, by Laundry, Dry Cleaning and Dye House Workers International Union, Local No. 1, herein the Union, against Swift Service Stores, Inc., AKA Swift Cleaning & Laundry Company, herein the Respondent, the General Counsel issued a complaint, amended complaint, and amendment to the amended complaint alleging Respondent violated Section 8(a)(1) and (3) of the Act. The answer of Respondent denied the commission of any unfair labor practices. This proceeding , with all parties represented, was heard before me at Cleveland , Ohio, on April 5, 1967. At the conclusion of the hearing the parties were given leave to file briefs and briefs were received from the General Counsel and Respondent on May 9. Upon the entire record in this case and from my obser- vation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is an Ohio corporation maintaining its principal place of business at Cleveland , Ohio, where it is engaged in providing laundry and drycleaning services. Annually Respondent derives gross revenues in excess of $500,000 and receives materials of substantial value from points outside the State of Ohio. Respondent is engaged in a business affecting com- merce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts 1. The history of the charges On January 26, 1966, the Union filed the charge in Case 8-CA-4134 alleging that Respondent had refused to pay certain of its employees a bonus for the year 1965 because they had engaged in "a lawful authorized strike" conducted by the Union on April 26, 1965.' Respondent's bonus plan, which was not incorporated in the contract between the parties, contained the following forfeiture clause in paragraph 7 (Resp . Exh. 3): In the event of a work slowdown or stoppage an em- ployee involved in such work slowdown or stoppage will forfeit all bonus points earned and will be ineligi- ble for Christmas bonus check. On March 21, 1966, the Regional Director for Region 8 refused to issue complaint (G.C. Exh. 1-G) stating: As the bonus plan which has been in effect for ap- proximately 13 years expressly provides that any ' The date of the work stoppage was Apnl 6, 1965. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee who engages in a work stoppage or slow- down shall forfeit his bonus for that year, the Em- ployer's refusal to pay the bonus to those employees who engaged in the work stoppage on April 6, 1965, was not violative of the Act. Moreover, as the Em- ployer has paid the 65 store employees their 1965 bonus, further proceedings would not effectuate the policies of the Act. On March 31, 1966, the Union, through its counsel, appealed the Regional Director's action to the General Counsel on the ground that failure to pay a bonus to em- ployees who had engaged in a lawful strike violated Sec- tion 8(a)(1) and interfered with rights guaranteed by Sec- tion 7 of the Act.2 On August 10 the General Counsel sustained the ac- tion of the Regional Director in a letter to the Union on the ground that since affirmative action was taken in April 1965 to effectuate its decision not to pay the bonus for 1965 to the striking employees and was commu- nicated to the Union at that time, further proceedings were barred by Section 10(b) of the Act.3 On October 6, 1966, the Union filed a charge against Respondent alleging that by maintaining in effect the for- feiture clause above, Respondent violated Section 8(a)(3) of the Act.4 On August 26, 1966, the Union, through counsel, asked the General Counsel for reconsideration of the dismissal of the charge in Case 8-CA-4134. The request was based on the fact that the General Counsel's deter- mination that the violation was completed in April 1965 was in conflict with Melville Confections, Inc., 55 LRRM 2241 [327 F.2d 689].5 On February 3, 1967, the General Counsel sustained the motion for reconsideration and granted the appeal.6 The General Counsel cited his authorization of complaint in Case 8-CA-4379, which challenged the validity of the bonus plan as grounds for reconsidering the dismissal in 8-CA-4134. The case was remanded to the Regional Director who then issued the amended complaint herein.7 2. The strike and the bonus plan The facts in this case are hardly in dispute. The record reflects that for a period of some 25 years the Respondent and the Union had a contractual bargaining relationship covering various plants and stores of Respondent.8 The plant involved in this proceeding was known as plant 1, the so-called production plant, and was covered by a separate agreement. The bonus plan had been in effect for some 16 years but had never been incorporated in any collective-bargaining agreement between the parties. While the plan had varied from year to year it remained basically the same. Until 1965 no strike had occurred at any plant or store of Respondent and no serious issue concerning the payment of the bonus had arisen.9 Plant 1 had been covered by a collective-bargaining agreement which ran from March 15, 1962, until March 15, 1965. (G.C. Exh. 2.) Some 2 or 3 weeks prior to the expiration date of this contract negotiations were initiated but no agreement had been reached between the industry and the Union when the contract expired, but the parties agreed that the terms of any new contract would be made retroactive to March 15.10 During negotiations a strike vote was taken and on April 6 Respondent's employees struck. Agreement was reached between the parties that night and Respondent's employees returned to work the next day, April 7. On the day the employees returned to work the em- ployees' point scores were removed from the bulletin board by direction of President Friedman. Points were awarded to each employee at the end of each month and a cumulative score was kept of his points which formed the basis for his share in the bonus at the end of the year. At the end of each month the scores were posted on the bulletin board so that each employee might know his standing. Points were based on the following factors (Resp. Exh. 3, above): 1. ATTENDANCE AND PUNCTUALITY Perfect attendance and punctuality throughout the month will be worth 200 points. A deduction of 10 points for each tardy and 100 points for each absence will be made. 2. GOOD WORKMANSHIP This business - and, therefore, your job security - depends on the quality of the work you turn out. A monthly award of 200 points for work- manship can be earned by your skill and careful attention to quality. (Ask yourself, "Would I be proud to wear this?") 3. ATTITUDE ON THE JOB In this category you can earn as much as 200 points each month. These points are based on: CONDUCT - Your behavior on the job - proper respect for supervisors - your following of company rules . No shouting or noisy behavior- proper time clock procedures, etc. COOPERATION - Your performance as a member of our team . A maximum point award means that you have done your full share towards our team effort. CLEANLINESS - Our job is to help people keep clean and neat. Your work can only be as clean and neat as you are yourself. Possible perfect score each month is 600 points. z G.C. Exh. 1-H. S G.C. Exh. 1-1. 4 G.C. Exh. 1-A. 5 G.C. Exh. I -J. G.C. Exh. 1-K, Although no order consolidating the cases was issued , the amended complaint embraced the allegations of both charges. e Negotiations were on an industrywide basis with the employers who were members of the multiemployer group signing individual contracts after agreement was reached. 9 One store manager had been refused her bonus in 1962 for not operat- ing her store properly and another employee lost her bonus in 1963 because she had not been employed during the month of December. Although the Union made inquiry in each instance, there was no dispute. 10 The new contract, signed in May, ran from March 15, 1965, to March 15,1968. SWIFT SERVICE STORES Your score for Good Workmanship and Attitude on the Job will be figured as follows: EXCELLENT 200 VERY GOOD 175 GOOD 150 FAIR 100 POOR 50 UNSATISFACTORY 0 Your name and score will be posted monthly. If, on December 1, 1965, you have a perfect score of 6600 points for the 12 months, you will receive a 900 point gift for, a total of 7500 points - a cash bonus of $75.00. The following table shows other gift points that may be earned: POINTS EARNED GIFT POINTS TOTAL POINTS CASH BONUS 6000-6095 300 6300 $63.00 6100-6195 400 6500 65.00 6200-6295 500 6700 67.00 6300-6395 600 6900 69.00 6400-6495 700 7100 71.00 6500-6595 800 7300 73.00 6600 900 7500 75.00 EVERY POINT IS WORTH MONEY - THE AMOUNT OF YOUR BONUS IS DETER- MINED BY YOUR TWELVE-MONTH POINT SCORE. Why not resolve to make 1965 a banner year for you in our RECOGNITION BONUS PLAN! Sincerely, E. D. Friedman, President P.S. A few further details: 1. New employees will start earning bonus points on the first day of the month following their employ- ment, 2. Part-time employees are not eligible to par- ticipate in this Recognition Bonus plan. 3. An employee absent 5 or more days in any month will receive no bonus points for that month. 4. An employee who takes an unauthorized leave of absence will forfeit all bonus points earned. 5. An employee whose total points on December 1, 1965 average less than 300 points per month will not be eligible to receive a Recognition Bonus. 6. If all points are lost in any category for three months during the year, the company may revoke all bonus points for that year. 7. In the event of a work slow-down or stoppage, any employee involved in such work slow-down or stoppage will forfeit all bonus points earned, and will be ineligible for a Christmas bonus check. 8. An employee to be eligible for a Christmas 11 The bonus plan, including the forfeiture clause, was posted on the Respondent's bulletin board together with the scores. 12 Sec. 10(b), to the extent pertinent hereto, reads: ... Provided, That no complaint shall issue based upon any unfair 365 bonus must be in our employ on December 24th and prior to November 1, 1965. The point scores were removed from the bulletin board on Wednesday and on Friday, according to the testimony of Friedman, he received a telephone call from Peter For- mica, the Union's secretary-treasurer, who inquired as to "what was going on with the bonus plan." Friedman told him the scores had been removed and when asked the reason told Formica the production people had gone on strike on Tuesday and therefore did not qualify under the plan. Formica's reply was, "We will see about that." Nothing further was heard from Formica until the initia- tion of these proceedings. Peter Formica testified that while he was aware that a bonus plan was in existence he was familiar with none of its details. He denied having telephoned Friedman shortly after the strike regarding the discontinuance of the plan. While both Formica and Friedman appeared to be credible witnesses, I must credit Friedman's testimony on this issue almost solely because I believe his recollec- tion of events at his plant following the strike was superi- or to that of Formica, who would have other plants requiring his attention. In any event the union members employed at Swift were inevitably aware of the discon- tinuance of the plan when the scores were removed. This was an incident not likely to pass unnoticed in a small shop. There is the testimony of Fred Pietro, drycleaning manager, that four or five employees, including the shop steward, inquired why the scores had been removed and that he told them that for 1965 there would be no bonus. Jayson Palmer, manager of the laundry department, testified that approximately 25 percent of his employees asked why the scores had been removed and were told by him that there would be no bonus. He also testified that none of them asked him why,1' indicating an apathy toward money almost incredible in a metropolitan city or, for that matter, in the deepest Congo. In December 1965, the month when the annual bonus was paid, no bonus was given the employees of plant 1. On December 29 Formica wrote Respondent presumably inquiring about the failure to pay the bonus (the letter was not offered in evidence) and on January 7 Respondent, through its attorney, Morton D. Barrisch, replied (G.C. Exh. 8) citing the forfeiture clause of the plan as the reason for denying a bonus to those who had engaged in the April 6 strike. B. Conclusions 1. Case 8-CA-4134 The sole question presented in the above case is whether the disqualification of the strikers from the Christmas bonus, a disqualification which I find occurred on April 7, 1965, was barred by the 6-month limitation imposed by Section 10(b).12 The charge in this case (G.C. Exh. 1-E) was filed January 26, 1966, and alleged, in substance, that the Respondent failed to pay its employees the Christmas bonus for the year 1965 because they engaged in a lawful authorized strike on April 26, 1965.13 labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the per- son against whom such charge is made ... 18 The correct date was April 6, 1965. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no dispute concerning the date of the strike nor of the failure to pay the bonus. Admittedly the charge was filed more than 6 months after the disqualification of the strikers. I find, in agreement with the General Counsel's notice denying appeal of the Regional Director's refusal to issue complaint,14 that the charge was barred by Section 10(b) of the Act. I find that the discrimination occurred on April 7 when the scores of the employees were taken down from the bulletin board and they were told that no bonuses would be paid that year because they had en- gaged in a strike. The discrimination became complete on that day and the failure to pay the Christmas bonus in 1965 was not a separate or continuing act of discrimina- tion; it was the culmination of the decision reached in April. In his notice granting reconsideration of the dismissal of the charge and remanding the case to the Regional Director (G.C. Exh. 1-K) the General Counsel cites Whiting Milk Corporation, 145 NLRB 1035. The citation is inapposite. In Whiting the original discrimination oc- curred when certain employees were, after a merger of Respondent's plants and by agreement with the Union, placed at the bottom of the seniority list because they had not previously been members of the Union. Later, and within the 10(b) period, they were laid off because of their lack of seniority. The Board held that the layoff was com- pelled by the unlawful agreement respecting seniority between the Company and the Union. The layoffs were a separate act of discrimination directly attributable to the unlawful seniority clause. Here the disqualification from the bonus plan was also a result of an unlawful forfeiture clause but the discrimination took place in April, some 9 months prior to the filing of the charge. What little doubt might exist is dispelled by the deci- sion of the U.S. Supreme Court in Local Lodge No. 1424, International Association of Machinists v. N.L.R.B. [Bryan Manufacturing Co.], 362 U.S. 411. In Bryan the Company and the Union entered into a collec- tive-bargaining agreement containing both a recognition clause and a union-security clause. The union-security clause was valid on its face but at the time the contract was executed the Union did not represent a majority of the employees in the unit covered by the contract. The Board held that the execution of such an agreement in the absence of majority status was an unfair labor practice. The charges, however, were not filed until some 10 to 12 months after the execution of the contract. The Board held that although the execution of the agreement was barred by Section 10(b) the maintenance and enforce- ment of the agreement continued and constituted an un- fair labor practice within the 6-month period. The Court rejected this argument on the ground that the contract was lawful and that the unfair labor practice stemmed solely from its execution at a time when the union did not represent a majority. Since the execution was barred by Section 10(b) "no violation could be found. Since I find that the unlawful action in the above-numbered case took place more than 6 months prior to the filing of the 14 G.C. Exh. 1-I. 1S 163 NLRB 517 Cf., Silver Bakery Inc. of Newton, 150 NLRB 421. 16 While I have found the disqualification of these strikers could not be eld an unfair labor practice due to the provisions of Section 10(b), it can -e used to establish the motive of conduct occurring within the 6-month ,period, Bryan, supra. charges, I must find that Bryan compels dismissal. As to the Board, its own Decision in Koppers Com- pany, Inc., 15 would appear to be controlling as a matter of procedure. There the Board stated: The original charge in this case was served December 22, 1964, making the Respondent Unions liable for their activities occurring after July 22, 1964, but freeing them of liability for acts preceding that date. When, however, the Regional Director on January 27, 1965, notified the parties that he had ap- proved the withdrawal of the charge, the situation changed. On that date, or on any date thereafter on which a charge was not on file, Respondent Unions had the right under the statute to be assured that they would not be held liable for activities occurring more than 6 months past. To permit the May 28 reinstate- ment of the December 22 charge to revive the Respondent Unions' liability for the alleged refusal to process the Charging Party's grievance would amount to a circumvention of the proviso to Section 10(b).. . Here the charge was dismissed by the Regional Director on March 21, 1966, and this dismissal was sustained by the General Counsel on August 10, 1966. Therefore from March 21, 1966, the Respondent "had the right under the statute to be assured they [it] would not be held liable for activities occuring more than 6 months past." The charge filed by the Union on October 6, 1966, therefore could not revive or apply to any unfair labor practices committed prior to April 6, 1966. Even under the General Counsel's theory of the case the unfair labor practices relating to the refusal to pay the bonus were committed not later than December 1965, well beyond the Section 10(b) date of the later charge. The issue is not worth belaboring. I find that the charge in Case 8-CA-4134 should be dismissed on the ground that any unfair labor practice alleged to have been com- mitted, occurred more than 6 months prior to the filing of the charge. 2. Case 8-CA-4379 It is alleged that the forfeiture clause of the bonus plan was discriminatory within the meaning of the Act. I agree. The clause punishes employees by disqualifying them from the annual bonus if they engaged in a work stoppage. No exemption is made for work stoppages which result from a lawful strike or other concerted ac- tivity guaranteed as a right of employees under Section 7 of the Act. If it be claimed that the clause is ambiguous and that the exercise of the right to strike does not clearly imply forfeiture of benefits under the plan, any such am- biguity was removed by the action of Respondent in disqualifying those employees who engaged in a strike on April 6, 1965. 16 Where the discrimination inevitably stems from the contract the intent to discriminate need not be spelled out.17 By maintaining in effect this forfeit- ure clause the Respondent violated Section 8(a)(1) and (3) of the Act. 1' Whether the Union acquiesced, by failure to protest the plan, I regard as irrelevant.19 17 Radio Officers ' Union, etc. [A. H. Bull Steamship Co.] v. N.L.R.B., 347 U.S. 17, 45. 1s Jim O'Donnell, Inc., 123 NLRB 1639 ; Pittsburgh-Des Moines Steel Company, 124 NLRB 855, enforcement denied 284 F.2d 74 (C.A. 9); Melville Confections, Inc., 142 NLRB 1334 , enfd. 327 F.2d 689 (C.A. 7), cert. denied 377 U.S. 933. 19 The Kroger Co ., 164 NLRB 362. SWIFT SERVICE STORES 367 IV. THE REMEDY Having found the Respondent engaged in and is engag- ing in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirm- ative action necessary to effectuate the policies of the Act. Upon the above findings and conclusions and upon the entire record in this case, I make the following: tamed in paragraph 7 of its bonus plan Respondent has in- terfered with, restrained , and coerced its employees in violation of Section 8(a)(1) of the Act and has dis- criminated against its employees in regard to terms and conditions of employment to discourage union member- ship and activity in violation of Section 8(a)(3) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. CONCLUSIONS OF LAW 1. By maintaining in effect the forfeiture clause con- Recommended Order omitted from publication.]