Advertisers Manufacturing Co.

100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Advertisers Manufacturing Company and Teamsters "General" Local 200, affiliated with Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Cases 30-CA-7496 and 30-CA-7565 12 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 18 January 1984 Administrative Law Judge Robert G. Romano issued- the attached decision. The General Counsel and the Respondent filed ex- ceptions and supporting briefs, and the Respondent filed an answering brief. The Board has considered the decision, and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. We agree with" the judge that the Respondent did not violate the Act-by discontinuing payment of yearend bonuses to employees.' We find merit however -in the Respondent's exception to the judge's `finding that it violated Section 8(a)(1) and (5) by refusing to provide the Union with request- ed financial information. Contrary to the judge, we find that the Respondent had no obligation to pro- vide the Union with the financial information re- quested. As set forth more fully by the judge, the record establishes that for many years the Respondent has paid a bonus to employees .at the end `of virtually each calendar year: In late' 1982, however, the Re- spondent informed the ' Union that it did not desire to pay a yearend bonus for that year. By letter of 7 December 1982 the Respondent provided several reasons to support nonpayment of the 1982 bonus including the assertion that "the level'of business in the industry and for the Company' has been, very poor for an extended period of time, going back to at least 1980, and the expenditure under that cir- cumstance 'is not warranted." The Respondent also noted that it "believed" more value for 'the dollar would be gained' by, investing in. employee benefits or.other operational expenses; it had been "consid- ering" discontinuance of the - bonus for several years; and because of a recent strike it' "would rather not" confront; the, question of whether the bonus-should be distributed to all employees. Thereafter, by. letter of 20 December 1982; the Union noted that the Respondent had referred- to ' No exceptions were filed to the judge's finding that the Respondent did not violate Sec 8(a)(1) and (3) by issuing a warning to employee Donald Hahn its "level of business" to justify nonpayment and requested that the Respondent furnish information revealing "the dollar amounts of business done by the company for the last fifteen (15) years." By letter of 29 December 1982 the Respondent replied that the "`level of business' reason is clearly not a plea of financial- inability to make that expenditure" and that it was therefore under no legal obligation to divulge confidential financial' information. Fol- lowing the, exchange of additional correspondence and the Respondent's production of information in limited summary form, the, Union on 10 February 1983 requested information revealing "gross sales, total incoming orders and profits" from 1967 to date. By letter of 24 February 1983 the Respondent replied in pertinent part that because "we are not pleading poverty, nor have-we ever done so, we are not going to share the Company's confidential records regarding sales, profits and incoming orders with the Union." In Atlanta Hilton & Tower, 271 NLRB 1600 (1984), we recently observed that in determining whether an employer is obligated to, provide infor- mation to a union pertaining to its financial condi- tion under NLRB v. Truitt Mfg. Co„ 351 U.S. 149 (1956), a critical distinction must be made between an employer's expressed inability to pay on the one hand and a mere . unwillingness to pay on the other. Thus, as we made clear in Atlanta Hilton, only an employer's expressed inability to pay gives rise to a duty to provide financial information. As we fur- ther noted in Atlanta Hilton, "Although no magic words are required to express an inability to pay, the words and conduct must be specific enough to convey such a meaning." 271 NLRB at 1602. In the instant proceeding the ,record clearly es- tablishes that by its specific words and-conduct the Respondent expressly and unequivocally disavowed any plea of financial inability to pay. Thus, on' 29 December 1982, the Respondent stated expressly that it was not pleading financial inability to pay and subsequently, on 24 February 1983, reiterated that it was not "pleading poverty." It is evident, therefore; that the Respondent at all times simply expressed an unwillingness to pay rather than an in- ability to pay: This is amply demonstrated not only by the Respondent's explicit disavowals of financial inability to pay, but also by the Respondent's, initial written justification to support nonpayment of the 1982 bonus. Thus, in addition to its "level of busi- ness" justification, the Respondent provided several other related reasons in its 7 December 1982 letter clearly demonstrating a simple managerial . unwill- ingness to pay a bonus rather than the economic in- ability to do so: (1) it "believed" funds for a bonus could be used more - advantageously elsewhere;-(2) 275 NLRB No. 19 ADVERTISERS MFG. CO. 101 it had been "considering" discontinuance of a bonus for some time; and (3) it "would rather not" decide whether all employees should receive a bonus. These stated factors all reveal a conscious unwillingness to pay a bonus and not a "plea of poverty" necessitated by financial inability. Fur- ther, in context with the foregoing factors raised initially on 7 December 1982 we perceive no mean- ingful distinction between the Respondent's general reference to its "level of business" and the employ- er's "vague references" in Atlanta Hilton to its oc- cupancy rate and the economy in general. In short, because it expressed only a simple un- willingness rather than an inability to pay, the Re- spondent had no obligation to provide the Union access to its financial records. Accordingly, the Re- spondent did not violate Section 8(a)(1) and (5) of the Act by refusing to comply with the Union's re- quest. We shall therefore dismiss the complaints in their entirety. ORDER The complaints are dismissed. DECISION STATEMENT OF THE CASE ROBERT G. ROMANO, Administrative Law Judge. This case was heard before me at Fort du Lac, Wisconsin, on April 20, 1983. The charge in Case 30-CA-7496 was filed on December 15 (amended December 29), 1982,1 by Teamsters "General" Local No. 200, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 200 or Charging Party Union) against Advertisers Manufactur- ing Company (Employer or Respondent) Complaint in Case 30-CA-7496 issued against Employer on January 4, 1983; and it alleges that about November 17, and thereaf- ter, Respondent unilaterally altered the terms and condi- tions of employees by discontinuing its past practice of paying a yearend bonus to employees, in violation of Section 8(a)(1), (3), and (5) of the Act. The charge in Case 30-CA-7565 was filed by Local 200 on January 24, 1983. Complaint issued against Employer on March 31, 1983, along with an order consolidating Cases 30-CA- 7496 and 30-CA-7565 for hearing. Complaint in Case 30-CA-7565 alleges that about February 10, 1983, Local 200 requested certain information, necessary and relevant to Local 200's performance of its collective-bargaining function, and that since February 24, 1983, Respondent has refused to furnish the Union the information request- ed, in violation of Section 8(a)(1) and (5); and the com- plaint additionally alleges that about February 18, 1983, Respondent issued a warning to employee Ronald Hahn in violation of Section 8(a)(1) and (3) of the Act. By timely answers to complaints in Case 30-CA-7496 and 30-CA-7565, filed by Employer respectively on January ' All dates are in 1982 unless otherwise stated 14 and April 6, 1983, Respondent has denied the commis- sion of any of the alleged unfair labor practices. In addi- tion to the issues raised above, an issue is joined by the parties on the appropriate scope, if any, under the cir- cumstances of this case, of official or judicial notice to be extended to certain prior administrative law judge deci- sions presently pending before the Board for review of Employer's exceptions. On the entire record, from my observation of the de- meanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent about June 6, 1983, I make the following FINDINGS OF FACT 1. JURISDICTION Jurisdiction is not in issue . Respondent, a Wisconsin corporation, is engaged in the manufacture of cloth spe- cialty products at its Ripon, Wisconsin facility. During the past calendar year, a representative period, Respond- ent shipped from its Ripon facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Wisconsin. The complaints allege, and Respondent in its answers admits that Respondent is now, and has been at all times material herein, an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act; and Respondent has fur- ther admitted that Local 200 is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. Prior proceedings a. Contentions At outset of hearing the General Counsel requested that administrative notice be taken of prior cases involv- ing Respondent. The General Counsel has urged, and Respondent does not contest, that official and/or judicial notice be taken of the Board 's prior Decision and Order in Advertiser 's Mfg. Co., 256 NLRB 644 (1981 ), finding Employer had violated Section 8(a)(1) and (5), and of its subsequent enforcement, Advertisers Mfg. Co. v. NLRB, 677 F.2d 544 (7th Cir. 1982). The General Counsel would also have official notice taken of a subsequent de- cision by Administrative Law Judge Richard A . Scully in JD-619-81, with specific reliance at hearing on certain findings by Judge Scully that Respondent had violated Section 8(a)(1), (3), and (5) by, inter alia, while refusing to recognize and bargain with the Union, unilaterally changing wages, hours, and working conditions of unit employees; and by issuing written warnings to Ronald Hahn, who is involved in the instant case. There is no allegation of a violation of Section 8(a)(4) by Respondent in the instant complaint. The General Counsel would also have official notice taken of the decision by Administrative Law Judge Walter H . Maloney, Jr. in JD-563-82, which issued on January 7, 1983, with specific reliance at hearing on cer- tain findings by Judge Maloney as made therein after 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing held on October 4-5, 1982, that Respondent had again violated Section 8(a)(1), (3), and (5) by, inter alias denying certain information to .the Union; by unilaterally changing wage rates; and by bargaining individually with employees in the'bargaiiiing, unit. At hearing the General Counsel also acknowledged intention to seek to rely on these decisions for background "animus" showing. Respondent at hearing objected to judicial notice being taken of the two administrative law judge deci- sions, at least insofar as to all adverse decisions therein made on the unfair labor practices that were alleged against the Company, contending, without contest by the General Counsel, that both decisions in regard to such findings are presently on appeal to the Board. In brief Respondent has additionally argued that the Board has indicated that judicial notice of unfair labor practice vio- lations from prior fully litigated cases serve at best as "background" and not independent evidence of "union animus," with stated reliance on Ken worth Trucks, 236 NLRB 1299 fn. 2 (1978). Respondent additionally con-_ tends that it would be improper to utilize the findings made therein to establish "union animus" in this case be- cause the unfair labor practice findings and recommenda- tions made in connection therewith are not settled as a matter of law. In brief, the General Counsel has continued to urge that official notice may, and should be, taken of the prior decisions herein, albeit, in apparent recognition of,an in- determinate nature of violations found by virtue of being pending on Employer's exceptions, with concession they all are not binding, but with the (additional) specification of purpose in brief for an observance that the parties are the same; that the alleged discriminatee herein is the same Hahn who received allegedly discriminatory warn- ings in the case heard by Judge Scully; that there is (an- other) allegation presently before me, as there was before Judge Maloney, of a refusal by Respondent to provide necessary and relevant information in a timely fashion; and that there is allegation herein of Respondent's unilat- eral and discriminatory termination of a yearend, bonus, which is the same type of allegation as other allegations previously heard by both Judge Scully and Judge Ma- loney. Respondent, in brief, has itself urged alternatively that the dissimilar circumstances of prior proceedings renders notice thereof in the instant proceeding as un- warranted, as follows: "Additionally the dissimilarity be- tween the instant case and the prior proceedings, namely, the contested recommended uiifair labor practices in the prior proceedings occurred in circumstances that predat- ed Respondent's compliance with the enforcement of the Union's certification by the United States Court of Ap- peals for the Seventh Circuit, renders notice thereof; even for `background' purposes as inappropriate." Preliminary Analysis It has, long been established that the Board will take official notice of its own proceedings.and decisions; that it. may rely thereon; and that in appropriate circum- stances, such as where a material issue of fact is identical and the parties are the same, a finding in, one proceeding may be a basis for a finding in a later proceeding, indeed considered as direct evidence of the same, where not in- hibited by Section 10(b) of the Act; or, if the condition of the relevant fact be otherwise, e.g., pre-10(b), al- though it may not then be given independent and con- trolling weight, the pre-10(b) relevant fact may be used as background evidence, e.g., as it frequently is, for sup- portive bearing on employer motivation, or union animus, in regard to employer's questioned conduct clearly occurring within 10(b) period. Cf. Seine Union, 136 NLRB 1, 3 (1962), enfd. 374 F.2d 974 (9th Cir. 1967); Plant City Welding Co., 123 NLRB 1146, 1148 fn. 7, 1150 (1959), Prentice Machine Works, 120 NLRB 1691, 1692 fn. 2 (1958); Bryan Mfg. Co., 362 U.S. 411 (1960); Walton Mfg. Co., 125 NLRB 485 (1959); see National Electric Corp, 87 NLRB 1536 fn. 2 (1949); and see and compare Heiser v. Woodruff, 327 U.S. 726, 733 (1946). It is clear that an administrative law judge is to extend analysis in the first instance to the same considerations where a prior Board decision has already issued, Del- champs, Inc., 234 NLRB 262 (1978), revd. on other grounds 588 F.2d 476 (5th Cir. 1979). Here however, earlier findings of certain violations by Judges Scully and Maloney are all subject to employer exceptions, and are pending before the Board The findings of unfair labor practices thus must presently be viewed as being contest- ed findings being not as yet approved and/or adopted by the Board. The issues raised by the parties' conflicting positions thereon are whether findings in such decisions may be officially noticed and, if so, for what purpose and/or under what limiting circumstances. At the outset it is observed Respondent's position was one limited to contest of findings of violations of the Act. . To begin with, I have no quarrel with the General Counsel's contentions generally that a decision, as a public document, is competent for official notice where it otherwise is to be shown properly material to issues in a subsequent proceeding; and that, even contrarily, e.g., where the decision is determined one not to be relied upon, the initial review of decision for contended pur- pose served involves neither prejudicial error, nor, in law, renders the reviewing judge biased,- cf. Academy of Art College, 241 NLRB 839, 846 (1979), enfd. 620 F.2d 720 (9th Cir 1980); Airlines Parking, 197 NLRB 762 fn. 1 (1972); and Meat Packers International, 230 NLRB 222, 224 (1977), revd. on other grounds 605 F.2d 466 (9th Cir. 1979). However, to the extent the General Counsel would appear to have additionally contended for an un- qualified reliance on an official notice of prior decisional findings of violations of the Act where such findings are subject of unresolved respondent exceptions, that pur- pose would appear to be just as clearly inappropriate and unwarranted, even where exceptions have not been later pursued, Duplan Corp., 184 NLRB -700 (1970). See and compare where in absence of exceptions there has been pro forma adoption of findings by the Board, Moulton Mfg. Co., 152 NLRB 196, 198, 207-209 (1965). However, it would appear unwarranted as well to go so far as Re- spondent would otherwise appear to have urged, viz, that it is never appropriate to do so, e.g., as where a cen- tral issue is related and controlling, and it may appear appropriate under those circumstances to do so qualified- ly, to expedite a decision, cf. Iron Workers Local 3, 195 ADVERTISERS MFG CO. 103 NLRB 980, 983 (1972). Indeed, appropriate remedial order determination would readily appear to be but other instance proper for such an interim conditional consider- ation. In any event, I am in the end persuaded that it is the purpose for which official notice of a pending deci- sion is advanced and/or potentially to be served that is controlling, and to which one is to be attentive. In that regard, and contrary to the General Counsel; I do not view-the Meat Packers case-as advanced in sup- port of the proposition that an administrative law judge may appropriately take notice of and make findings based on another judge's decision while it is pending before the Board, as warrant to do so here. The Meat Packers case, supra, 230 NLRB at 223, directly involved its own unique circumstances of a respondent employer's exercise of an unquestioned right to seek to minimize any potential backpay liability by immediately reinstating cer- tain employees earlier found by an administrative law judge to have been terminated in violation of the statute, without prejudice to the employer's exercise of an appeal right, but whose subsequent conduct in that respect, prior to Board review of its exceptions, had then itself become subject of additional complaint allegations due to a claimed departure from the terms of the recommended remedial order, and presence of other factors indicative there was in reality continued discrimination. There, unlike here, the very terms of the prior appealed decision were directly material to the subsequently brought 8(a)(3) and (4) complaint allegations, indeed related to re- spondent's defense, and with which they were thus inex- tricably enmeshed materially. The General Counsel would appear to have generally acceded to the proposition that credibility is also not to be deemed a warranted purpose; or at least has conceded that credibility purpose is not intended herein to be served thereby. In any event the Board has previously indicated that an assessment of a witness' credibility in a subsequent proceeding is not to be deemed governed by those made in an earlier one, Meat Packers International, supra, 230 NLRB at 224; and the Board has later cau- tioned, seemingly even more disposedly, that it is gener- ally inappropriate for an administrative law judge to rely on credibility findings -made in another case, Electrical Workers (IBEW) Local 3 (Nixdorf Computer Corp.), 252 NLRB 539 fn. 1 (1980).• That the latter wholly salutary rule is not one for cavalierly engrafted exception hardly needs additional argument.- Notably, this case does not involve the quite different evidentiary circumstance which may arise for evidentiary evaluation , e.g., -as where a proponent of a material fact has properly re- introduced the certain evidence claimed directly support- ive of its position; or, has effectively contrasted of record for specific urged credibility purpose, prior and current testimony of a witness, cf.• Academy of Art College, supra, 241 NLRB at 846. It is notably significant that these evi- dentiary approaches effectively meet- Respondent's addi- tional objections that were essentially rested on (at least) the spirit of the Board's Statement of Procedures, 29 CFR Sec. 101.10 b(3), which states: "Where any decision rests on official notice of a material fact not appearing in evidence in the record, any party is on timely request af- forded a reasonable opportunity to show the contrary " The remaining contentions of the General Counsel and of Respondent, particularly in regard to contended bear-' ing on presence or absence of "animus," would appear best left for resolution after addressing the underlying material facts and the other uncontested background. b. Prior Board and court proceedings It is uncontested that pursuant to a Stipulation for Cer- tification Upon Consent Election earlier approved in Case 30-RC-3809 on August 13, 1980, an election was conducted on September 12, 1980, in the following agreed appropriate unit: All regular full- and regular part-time production, maintenance and janitorial employees of the Em- ployer at its Ripon, Wisconsin plant; excluding man- agers, office clerical employees, guards and supervi- sors as defined in the Act: In the ensuing election, the (then) petitioner, General Teamsters, Warehousemen and Dairy Employees Union, Local No. 126 a/w the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 126) received 115 votes for, 43 votes against, and there was 1 indeterminate challenge ballot. Following an appropriate investigation of Employer's timely filed Objections to Conduct Affecting Results of Election, the Regional Director issued on October - 23, 1980, a Report and Recommendations thereon, recom- mending to the Board that Employer's election objec- tions be overruled in their entirety, and that Local 126 be certified. Following Employer's timely filing of ex- ceptions thereto, the Board, on January 19, 1981, issued its Decision and Certification of Local 126 as the exclu- sive collective-bargaining representative of the employ- ees in the above unit, one uncontested as appropriate within the meaning of Section 9(b) of the Act. - On January 26, 1981, Local 126 requested Employer to bargain. Commencing on February 6, 1981, Employer refused, electing to test the Board's certification of Local 126. On resulting charge by Local 126 in prior Case 30- CA-6320 filed on February 10, 1981, an 8(a)(5) and (1) refusal-to-bargain complaint issued againt Employer on March 6, 1981. In Respondent's answer thereto, filed on March 18, 1981, and in its subsequent response to the Board's Notice to Show Cause, brought on the General Counsel's Motion for Summary Judgment, Respondent essentially admitted its refusal to bargain, but defended that the' Union was not properly certified. The Board thereupon concluded that" Respondent was attempting to relitigate matters' already litigated, and found that since February 6, 1981, and thereafter, Respondent had refused to bargain collectively with the Union; and that by such refusal it had engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, Advertiser's Mfg. Co., 256 NLRB 644 (1981) The Board therein or- dered respondent to cease and desist from refusing to bargain with the Union, and from in any like or related manner interfering with, restraining, or coercing employ- ees in the exercise of their Section 7 rights. The Board also ordered other and usual remedial steps to ensure that the unit employees would be provided the services 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their selected bargaining agent for the period provided by law, by ordering construction of the initial . period of union certification as beginning on the date that Re- spondent commenced to baigain in good faith with the Union. The Board's decision issued on June 17, 1981. In the interim , on April 2, 1981, the Regional Director had petitioned the United States District Council for the Eastern District of Wisconsin for a temporary injunction under Section 10(j) to restore the status quo in working conditions as of the election date. A temporary injunc- tion was granted on April 30, 1981 , with order essential- ly restoring the status quo in significant terms and condi- tions of employment, in absence of bargaining, as of elec- tion date, and prohibiting Employer from making unilat- eral changes of significance in terms and conditions of employment . Respondent was not restrained thereunder from, and continued its refusal to bargain with the Union, as it pursued its contentions that the Union had been improperly certified. Thus, Employer proceeded with its petition to the Seventh Circuit Court of Appeals for review of its claim of improper certification, and the Board brought a cross-application for enforcement of its Decision and Order Employer also appealed the re- straining order of the district court to the Seventh Cir- cuit. (1) The chronology of JD-619-81 The 8(a)(1), (3), and (5) allegations of consolidated complaint of February 19, 1981, underlying the latter, were heard before Judge Scully on certain days in May and June 1981 , following which he issued his decision on December 29, 1981 , finding the certain but multiple vio- lations of Section 8(a)(1), (3), and (5), which have been appealed to the Board . As it- is established that the earli- est charge filed was, as noted, filed on December 15, 1982; it is apparent that any such findings that may be upheld may serve only as background to instant matters under consideration. In the interim, commencing about July 6, 1981, certain of Respondent's employees had ceased work concerted- ly, and engaged in a strike. During the strike Respondent Employer continued production , doing so substantially with replacement employees. Also, in the interim, on .November 1, 1981, Local 126 merged with Local 200. . On April 27, 1982,- the Seventh Circuit rendered its opinion in Advertisers Mfg. Co. v. NLRB, 677 F.2d 544 (1982), in which it denied the Company's petition for review, finding nothing of record or in the Company's arguments established that the Board had abused its dis- cretion in overruling the Company's election objections and in its finding of a 8(a)(5) and (1) violation in the Company's refusal to bargain with the duly certified rep- resentative of its employees ; and the court accordingly enforced the Board's order in full. In the same review, observing the rule in its own and other circuits was that of approval of Board view that an employer acts at its peril in making unilateral changes in "wages, hours, and other terms and conditions of employment " dating back to the union victory in an initial representation election; and, observing that the Board had under review certain postelection unilateral changes, the Seventh Circuit addi- tionally held : "Whatever may be the outcome of the Board's review, it cannot be said that there is no reasona- ble cause whatsoever to believe at this stage that Compa- ny's changes constituted violations ." Whereupon, the Seventh Circuit also affirmed the district court 's injunc- tive order. On the Union's notice of Employer's acceptance of the Seventh Circuit Court of Appeals review, on May 7, 1982, the strike ended. At the end of the strike Respond- ent's work force was 118 employees , composed of 92 re- placements and 26 others (at least), 6 of whom had worked throughout the strike .- On May 10, an undefined number of striking employees returned to work . (There were subsequent meetings with regard to the subject of return of strikers. The record is left ambiguous as to what the work force makeup was after the return of strikers, and certainly so when bonus subject was dis- cussed in November 1982.) At least since acceptance of the circuit court's-review, the Employer has not contest- ed the intervening merger of Local 126 and 200; and Employer has since that time recognized Local 200 as the exclusive collective-bargaining representative of the above unit employees. (2) The chronology of JD-563-82 The 8(a)(1), (3), and (5) allegations of consolidated complaint of July 22, 1982, were heard before Judge Ma- loney on October 4 and 5; his decision in JD-563-82 issued on January 7, 1983 . Respondent does not contest herein (as was heretofore admitted by Respondent, and found by Judge Maloney) that the strike of Respondent's employees which commenced about July 6 , 1981, and which was ended on May 7, 1982, was an unfair labor practice strike. 2. The facts a. The history of prior payment of yearend bonuses The parties have stipulated that yearend bonuses have been paid to production employees, office employees, and administrative and management employees since at least 1951 through 1980 (thus for 30 years). Bonus amounts paid have varied from year to year . Bonuses, in lesser amounts, were also paid to employees initially hired in the given year, though nothing of the type others there over a year or longer received Yearend bo- nuses given unit employees in the years 1978-1980 are in evidence . In 1978 between $37-38,000 was distributed amongst 156 employees; in 1979, some $45,000 among 176; and in 1980, approximately $44,000 among 157 em- ployees. In each year the minimum amount given was $20, with the maximum in the respective years being $520, $548, and $485, but with approximately one-half of the employees in these respective years receiving bo- nuses in the $200-$400 range. By Counsel Mueller's letter of December 2, 1981, Em- ployer informed Union Business Representative Wetzel that assuming, but not conceding , "that the year-end cash bonus for production employees, the holiday party and the Christmas gift to employees" are "terms and conditions of employment" within the district court order, pursuant to the "significant changes" provision of ADVERTISERS MFG. CO 105 that order, Employer was advising the Union that the Company did not intend to grant and/or have those items in 1981. The letter stated Employer's intention was based "es- sentially" on the fact that the Company anticipates the fiscal year ending December 31, 1981, "will not be prof- itable"; or, that any profit will "at most be miniscule." With stated attention directed at Wetzel's attendance at Board Case 30-CA-6105, et al. (before Judge Scully), the letter asserted "it is a matter of public record that the level of business had significantly deteriorated during the latter part of 1980, and into the first part of 1981 " Em- ployer therein additionally asserted that the strike, begun in July 1981, and continuing , "coincided with what is normally expected to be the Company' s busiest level of business activity," which significantly contributed "to a substantial reduction of gross revenue"; and it was there- in also asserted that the Company had "had to hire and train about 225 new employees to achieve a presently re- duced workforce of approximately 110 production em- ployees," occasioning additional expense and loss of pro- ductivity. The letter also related that common sense oth- erwise dictated a holiday party would be inappropriate. The letter then also advised: "The Company will be asking and expecting the approval by the Board of Di- rectors at the next scheduled meeting of the Board of Directors on Friday, December 11, 1981, of the intention herein stated not to grant the yearend cash bonus, give a Christmas gift or have a holiday party." The Union did not reply to this letter. However, Em- ployer's letter had noted that the communication of Em- ployer made to Local 126 had been made pursuant to the court order; and it was explicitly stated therein that it was not to be construed as a waiver of the Employer's position with regard to "the apparent merger" of Team- sters Local 126 with Local 200, though Employer's posi- tion thereon at that time does not itself otherwise clearly appear of record. It is in any event clear and uncontro- verted that throughout this material period Employer had continued to decline to recognize the Union as the certified collective-bargaining representative of unit em- ployees. A 1981 yearend bonus was not paid to any' employee. However, nonunit employees (office staff, supervisors, and managers) were given a certain gift "as a token of the Company's appreciation" for their "extra effort" for doing production work as well as their regular work in the (1981) strike period. Gifts given were in the range of 20-25 percent of the yearend 1980 bonus that had been given to these employees. There was no gift given to them for 1982, as the record reflects that in that strike period they were essentially back doing only their own regular jobs. There was no bonus given to anyone in 1982. - b. Negotiation meetings On specific day uncertain but about the third week in May 1982, the Union presented Employer with its initial proposal for a contract. From record evidence, it appears the Union proposed all monetary agreements should be retroactive to September 12, 1980, except for insurance. On June 10, 1982, Employer presented the Union with Employer's proposal for a complete -contract. Employ- er's proposal, insofar as pertinent, provided in article XIII, "General Provisions," section 5, discretionary benefits/compensation. Bonuses, gifts, picnics, parties and other such inci- dental benefits and/or extra compensation are grant- ed as determined by the sole discretion of the Em- ployer. I . There was no discussion of that provision in the June 10 meeting and there was no discussion of yearend bonuses by the parties before the Union brought up the subject in a negotiation meeting held on November 15, 1982. There were approximately 30 negotiation meetings held by the end of 1982 However, some 8-9 of the meetings held in the period August-November had prin- cipally addressed the subject of work rules. By early No- vember the parties had negotiated a tentative agreement on work rules and an agreement for their (at least) tem- porary implementation. At the midpoint of the negotiation meeting held on November 15, apparently at the start of the afternoon session, Wetzel asked Edward Bumby (executive vice president and secretary) if the Company was going to have its annual Christmas party and when the yearend bonus would be paid to employees. Bumby replied that neither of those subjects had been discussed or thought of by. management at that time and he would get back to Wetzel with a response. However, Wetzel relates that, when Mueller thereafter entered the room, Bumby ad- vised Mueller of Wetzel's recent inquiry about the year- end bonus and Christmas party. According to Wetzel's recollection Mueller stated they felt the yearend bonus and Christmas party should be incorporated into the total package of negotiations of the total labor agree- ment, but that they would discuss it further. Bumby es- sentially confirmed Wetzel on Wetzel's inquiry being ini- tially made on November 15, and that his own response was that he had not heard anything about,a bonus or Christmas party, and that he would look into it and get back to the Union on it in the next meeting. Bumby also testified that he did not believe anything else was said about it in that meeting. In light, of Bumby's tentative disclaimer, and probability of Wetzel's notice of re- sponses to union inquiry, I credit Wetzel's account. However, Bumby relatedly testified that it was at the November 17 meeting that the Company first told the Union it was considering discontinuing the yearend bonus I credit Bumby in that respect. In the afternoon session of the next negotiation meet- ing held on November 17, Wetzel again questioned the Company in regard to the annual Christmas party and the yearend bonus. With regard to the Christmas party, Mueller responded that the, Company felt it would be im- proper to hold it this year as it was too close to the end of a 10-month strike, that there could be ill feelings be- tween both people', that crossed the (picket) line and those people that stayed out. On the matter of yearend bonus, according to Wetzel, Mueller said that it would be very difficult to pay a bonus, explaining : The employees had worked during varying 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD times; some people 'had crossed the line and worked longer than others, others had returned after the strike ended, and some employees were not working full weeks; and that based on that as an issue, the Company did not want to pay it. Wetzel agreed that maybe the Christmas-party might not be in the best interest of all parties concerned. As to the yearend bonus however, Wetzel' stated that the Union would be willing to discuss and negotiate with the Company on the basis of a pro rata amount due the people. Wetzel also said that the yearend bonus had been paid for in excess of 20 years, and it was the Union's position that it should be continued to be paid. However, accord- ing to Wetzel, Mueller took the position that this year- end bonus should be incorporated into the total package; and Mueller said that -it might be an incentive of the Union and the Company to reach an agreement. Mueller also said their business was lousy in 1980-1982, and af- fected by•the strike in years 1981-1982, that orders were down and profits were down. Mueller said that manage- ment people would be handled on a merit-increase basis; and that unit people would probably be better off with it incorporated into the total cost factor of the labor agree- ment. Although somewhat confused of record, some Wetzel testimony indicates that he first asked inanage- ment in this meeting to give the Union its position in writing why they did not want to pay the yearend bonus. The next and last negotiation meeting during which these matters were actually discussed was on December 2. All parties concede the subject of bonuses was dis- cussed, in depth at.this meeting. Wetzel relates that the Union's position was to bypass the Christmas party, but the Union demanded that the yearend bonus be paid. At this meeting the Union stated it was willing to negotiate it out on a pro rata basis, based on hours worked. Wetzel asked for the Company's position. Wetzel relates Mueller responded that he would recap their position taken on November 17; and, according to Wetzel, Mueller said they, felt the yearend bonus could not be paid. ' According to Wetzel, Mueller severally related, as the reasons: Employees had worked different peri ods • of time; the Company was:not having the best business con- ditions, and Mueller again :referenced effects of the 1981- 1982 strike;. the Company's earlier (June) contract pro- posal position was that these items should be left to the discretion of management; and that Mueller felt the moneys that would be expended on Christmas party and bonuses, should be incorporated into dollar amounts to be used in' a total' contract package; that if bonuses were not paid it'would be an incentive to the Union and employ- ees'to reach 'an agreement, and that'by incorporating the bonus into the contract' the employees would receive the benefits all year around,' as people have a tendency after they 'receive 'a bonus' to forget 'what was given them: 'Wefzel• testified that the Union 'demanded the bonus be paid; just like every'bther year; and the Union stated that it wanted management's position in writing so-the Union would~' know : exactly '-what management 'was talking about. Wetzel'relates that Mueller responded he thought Wetzel's request for Employer's position in writing was just to get some additional information for future litiga- tion. Apart from general but categorical testimony by Bumby that on numerous occasions. Employer advised the Union that it was not pleading proverty, or inability to pay bonus, but it was just not going to pay the bonus in 1982 for reasons stated, it appears Bumby did not oth- erwise contest Wetzel's account of the bonus discussions in the November 17 and December 2 meetings. Howev- er, it is observed that Employer's written position as re- flected' by Mueller's letter of December 7 to Wetzel (next considered) relates that in the November 17 meet- ing Employer stated that a "year-end monetary gift" would not be granted and that a "Christmas party" would not be held this year. On December 7, the Company mailed its written posi- tion on the yearend monetary gift (hereinafter bonus), and delivered a copy to the Union at the next negotia- tion meeting held on December 8. As the Company's written position is contained in Mueller's December 7 letter to Wetzel, and essentially was not discussed on December 8 and as it appears central to subsequent events and material to subsequent communications and requests for information, the body of the letter is presented in its entirety: Dear Mr. Wetzel: At the afternoon session of-the negotiation meet- ing in November 17, 1982, the Company stated that a year-end monetary gift would not be granted and that a Christmas party would not be held this year. At- the next negotiation meeting on December 2, 1982, you stated that the Union would not make an issue of the Company's position regarding the party, because the Union agrees with at least the Compa- ny's stated position that a party would not be ap- propriate in view of the possible lingering effects of the strike during the previous year. However, as to the gift, the Union stated the po- sition at the December 2nd meeting that the gift should be granted on a prorated basis. The Company rejected the Union's position. Discussion on the subject of the gifts indicated that the Union will probably file an unfair labor practice charge with the National Labor Relations Board on the matter. As a result,. the Company noted, and the Union agreed, that it would be ap- propriate for the Company to provide a written confirmation df the reasons underlying the Compa- ny's position that, the discontinuance of the year-end monetary gift. is justified. These reasons, which were initially stated at the No- vember 17 negotiation meeting and reiterated and ampli- fied at the December 2 meeting, are as follows: ' 1. Due to `the split work force in 1982 as a result of•the strike, the Company would rather not con- front the question of whether the gift should be distributed to members of each work force. 2. It is believed that more value for the $$ is gained by investing in wages, benefits, or other operational expenses,•than by making an expendi- ADVERTISERS MFG CO 107 er. ture for a monetary gift, because of the human tendency to forget the value of a gift after a short period of time, therefore, a year-end monetary gift is not believed to avoid the persisting ques- tion of "what has my employer done for me lately?" 3 The level of business in the industry and for the Company has been very poor for an extended, period of time, going back to at least 1980, and the expenditure under that circumstance is not warranted. 4. The Company has been considering the discon- tinuation of the monetary gift for at least several years. 5. The Company does not intend to distribute plant-wide monetary gifts in the future as has been done in the past. 6. The decision not to distribute a monetary gift this year is consistent with the Company's June 10, 1982 labor Agreement proposal in Article XIII, Section 5, which states that , "Bonuses, gifts, picnics, parties and other such incidental benefits and/or extra compensation are granted. as determined by the sole discretion of the Employ- 11 7. An acceptance of the Union's prorated pay- ment position at this time, while the negotiations are continuing, is inconsistent with the Compa- ny's negotiation position concerning gifts, the Company's policy not to have a monetary gift as an established benefit and the poor level of busi- ness, because the distribution of a monetary gift at this time would not be recoverable at a later date in the same fashion that a delayed wage in- crease can be made retroactive. As noted when these reasons were explained and discussed at the negotiation meetings, the order in which the reasons are stated does not indicate a degree of significance. In confirming that item 3 regarding the "level of busi- ness" being down was accurate, Bumby has testified in explanation that the Company is an advertising. specialty manufacturer; and that its products usually carry an im- print of an advertising message for its customers. Its products are sold by a distributor network throughout the United States. Bumby-testified that in a recessionary period the first thing Employer's customers will cut back on is their advertising. Bumby relates that the Compa- ny's business, like its industry, started coming down in 1980, and it was severly down in 1981 and 1982. Bumby asserts the Union knew that as at the various negotiation meetings (held in 1982) the Company was continuously keeping the Union informed as to what was happening. The Company regularly discussed that its level of busi- ness was down ; it had advised the Union of the status and source of its incoming orders; and the Company was regularly distributing weekly production (work) sched- ules which showed production was down. Wetzel has ac- knowledged a union awareness that the general economy was poor; that the strike may have.reduced normal work. flow; and that the plant was not working all its employ- ees. In the latter regard Wetzel-also acknowledged that work schedules, were distributed since approximately, June; that since . the end of the strike some employees have worked full weeks, some partial weeks, some varied weeks, and that some employees were laid off. Though Wetzel also asserted the Union had received conflicting reports from certain departments concerning the avail- ability of orders to accommodate full-time work, there is no allegation in complaint in that regard; nor was persua- sive evidence presented thereon and/or- is it to be deemed an issue persuasively litigated herein. Bumby has also testified in amplification of item 2 (dollar value) and its relation to item 4 (prior consider- ation of bonus discontinuance) that for the past 4-5 years that Company President Mench and he had discussed and considered an elimination of- the yearend bonus for several reasons, but mainly because it is a short-lived benefit, that would be of more value if it were put into wages, fringe benefits, and other operational expenses. Thus Bumby related that in 1978 they had first proposed bonus discontinuance or reduction , and putting it into other benefits, to an existing employee committee, but the employees did not want to do that at that time. Nonetheless, Bumby asserts the Company had been con- sidering taking that action for quite some time. It may be observed in passng that this was not a reason raised by Employer as a consideration in its December 2, 1981, letter to Wetzel; and although the Company had present- ed its proposal for contractual agreement in June that the bonus be by discretionary grant of management, Bumby acknowledged (as found) that the first time that the Company advised the Union it was considering an elimi- nation of the yearend gift/bonus was in the' November 17 meeting. On cross-examination Wetzel, however , in turn has ac- knowledged in regard to item 7 (recovery), that there had been discussion at the December 2 meeting about a distribution of a monetary gift at this time not being re- coverable at a later date . Wetzel related that Mueller had stated the Company felt that the yearend bonus and Christmas party could be incorporated into a wage rate for the people that they would enjoy throughout the year. According to Wetzel he responded they would need to know the' financial' amount they ' were talking about.; Significantly, on cross-examination, Wetzel addi- tionally confirmed that Mueller had also stated there was a possibility the monetary. gift could be negotiated as a part of the full settlement and paid at that time. Accord- ing to Wetzel the Union countered that they were in ne- gotiations;. and that the practices, and policies of the Company in the past should be maintained and that the bonus should be paid. Wetzel also stated they could ne- gotiate for future , bonuses in a , collective-bargaining agreement,. but that we should not be negotiating some- thing away from past company policy. Wetzel confirmed that Mueller answered that a gift or bonus for 1982 (paid) at later date would be the.;same as paying the matter retroactively, but the Union did not agree. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On'•December 9, Employer posted on its employees' bulletin 'board a notice that the Company would not have a Christmas party this year and that monetary gifts would•not be distributed this year; that the reasons had been discussed with the Union; and that the reasons were stated in the letter-.to the Union, a copy of which was also posted on-the bulletin board It is uncontested that the Union had requested that Employer notify the indi- vidual unit employees in writing of its intent on both items. There was conflict only as to the method by which the- notice was to be imparted.' Wetzel's under- standing was that a copy of Employer's written position was to be handed to each individual employee, though apparently a union committee person after the December 8 meeting had, urged that the written employer position be posted. Employer's understanding was -the Union had merely requested a written notice be given to all employ- ees, a request that it viewed could. be accomplished by usual posting. It appears there was misunderstanding, if not ambiguity,,as to how notice of Employer's written position to employees was to be accomplished. In any event it is neither-alleged; nor is their evidence presented of record sufficient to warrant a conclusion that involved was an instance of any attempt by Employer to bypass the Union. See Jones Motor Co., 260 NLRB 97, 98 fn. 5 (1982). - On December 13, the Company submitted to the Union by mail another (apparently second) complete proposal for. an agreement Employer's new proposal, in- sofar as pertinent, renumbered "General Provisions" to article XV, but the content of Employer's proposal on section 5, discretionary benefits/compensation provision otherwise remained the same as that which it had pro- posed earlier.on June 10. Wetzel has testified the provi- sion was never discussed at a meeting thereafter. Wetzel has also testified that the Union has never agreed to Re- spondent's proposed section 5. In the interim, on December 14, Wetzel wrote Bumby requesting certain information "so that negotiations can continue in an orderly fashion" and to enable the Union to answer and attempt a counterproposal to Employer's anticipated forthcoming comprehensive counterproposal, in terms pertinent otherwise, as follows: The Union, by this request, does not relinquish its position that the - 1982 Christmas or year end bonus is due and owing to the employees based on time worked, but the Union is willing ' to negotiate has suggested and requested by management on the above dates in` an attempt to reach an agreement for use •or distribution of said moneys. Therefore,. please furnish the Union .with the dollar amount that the Company proposes to trans- fer from the Company Christmas party to wages and'benefits. Also furnish us' with employees names and amounts given to each said employee in the past three (3) years, namely 1979, 1980, and 1981 on a year by year basis. As noted, the initial charge herein was filed on De- cember 15, and a copy served on Respondent on Decem- ber 16. 'Bumby responded promptly to Wetzel 's inquiry on the requested bonus information by letter dated De- cember 17;supplying the data for 1979 and 1980 as re- quested, stating there was none for 1981 , but voluntarily supplying 1978 data, effectively responding to a 3-year data request . The data supplied was itself in form of comprehensive computer printout with specifications provided as to department, employee - number, name, gross, specified withholdings, and other data evidencing the gross did not encompass pay for regular hours, etc. Bumby advised that Mueller. would respond separately, inter alia, on the requested Christmas party data. Al- though there would be approximately a month's delay ,thereon apparently resulting from counsel misunderstand- ing of what had already been ' supplied by Bumby, and what was later additionally requested, the oversight was corrected , and, (I find) all requested Christmas party data reasonably presented when Wetzel renewed request clarifying the Union had not earlier received any Christ- mas party data from Bumby. However, by letter of. December 17, Mueller other- wise told Wetzel in regard to his -reference on Christmas party and yearend monetary gift fund transfers that: "The Company has not earmarked any -specific `dollar amount' for use in making.a determination hereafter in the negotiations _ as to what increase adjustment, if any, should be made and/or is justified in 'wages and bene- fits."' After relating that the Union had misconstrued the Company's position as proposing to segregate these funds for an increase of wages and benefits , Mueller's letter stated: Moreover, the noted misrepresentation overlooks another fundamental part of the Company's posi- tion; i.e., "the level of business in the industry and for the Company has been very poor ' for an ex- tended period of time, going back to at least 1980, and the-expenditure under that circumstance is not warranted." This being the case, there is no "dollar amount" that is presently recognized for application only to the "wages and benefits" for the bargaining unit employees - However, this does not mean that the Company will not continue to entertain a request by the Union that some type of a year-end bonus be agreed to as an established benefit as part of the first labor contract . But, from what has already been said on the subject, it should be clear to-the Union that the likelihood of the Company agreeing to such a re- quest is extremely minimal . This, however, is com- pletely different from your representation that the Company "suggested and requested" that any sav- ings from not having distributed the year-end mone- tary gift should be specifically used or distributed in some fashion to bargaining unit employees. On the same day, and clearly prior to union receipt of. this letter, the parties agreed, on union request to accom- modate preparation' of its counterproposals, to cancel the next meeting then scheduled for the following week, but with Thursday, January 6, then held open for their next negotiation meeting; - ADVERTISERS MFG CO 109 By letter of December 20 Wetzel wrote Bumby, with reference to "the level of business as a fundamental part of the Company's position," requesting that the Union be furnished "with the dollar amounts-of business done by the company for the last fifteen ( 15) years, namely 1967 to and including 1981 and the year 1982 when those fig- ures are available"; the amount spent on Christmas par- ties, average cost per employees, and records showing bonuses paid employees over the -same period, with veri- fied statement as presently ' acceptable By letter of De- cember 22, Bumby notified Wetzel that legal counsel would respond. By letter of December 29, Mueller , essentially an- swered Wetzel that the Union's extract from his earlier letter of December 17 was but one of seven reasons con- firmed on December 7 "as justification for the Compa- ny's position to discontinue the year -end monetary gift. This 'level of business' reason is clearly not a plea of fi- nancial inability to make that expenditure . Therefore, the Company is under no legal obligation to open its finan- cial records and divulge confidential information of the type requested . Nevertheless, in the continuing spirit of cooperation and sharing information with the Union, the Company is willing to further discuss the matter with the objective of agreeing to supply the Union with data in support of the 'level of business ' factor, even though the Union has to be sufficiently cognizant of the situation. In this regard , it is noted that 'dollar amounts - of business' is not the most relevant factor concerning the matter." Mueller, in other respects, pertinently stated: "The Com- pany has not completely foreclosed the possibility that a 1982-year-end monetary gift could ;be negotiated as part of a total monetary settlement in the negotiations and then be paid retroactively to - the employees," as is claimed was specifically mentioned by it in the Decem- ber 2 negotiation meeting and confirmed in its December 7 letter, item 7. Mueller's December 29 letter further re- lates:, ' ' In that regard , I recall stating that it would make more sense under 'all the circumstances to pay a ne- gotiated year .end monetary gift in that way rather than ' to pay it before reaching' an agreement bn money` items, which latter situation leaves 'the prob- lem of recovering the money if the company's posi- tion of no year end gifts should prevail You agreed that this could ' be handled in this maniier. Indeed on this very point you -specifically made reference to the Union's continuing demand that monetary agreements should be retroactive to September 12, 1980, except for insurance, which demand was lo- cated at the time on page 43 of the Union's written proposal . Additionally,' the retroactive payment of an agreed to 1982- year-end' monetary gift is the very possibility that was encompassed by the state- ment in my letter to you of December 17, 1982, that the Company will continue to entertain a request by the Union that - some type'of a year end- bonus be agreed to as an established benefit as part of the ,first labor contract; however ,- I reiterate that the probabilities are not very good for such an agree- ment. "Closed mind?" Nonsense! The parties met on January 6, 1983 . Although there is confusion of that as being their last negotiation meeting prior to instant hearing , apparently the parties met one more time on January 12, 1983. In any event about Janu- ary 18, 1983, the Company submitted certain additional counterproposals to the Union , none of which , however, related to the bonus matter . The Union also later coun- terproposed on other matters, which were in turn reject- ed by the Company about the first of March. The present state of the negotiations is the parties were scheduled to meet next (after hearing herein) under FMC auspices on May 9 and 10. However, in the interim there were continuing communications by the parties touching on bonuses, but more related to union information re- quests and employer responses ' By letter of January 7, 1983, Wetzel wrote Mueller disavowing that the Union had last requested information on the basis Mueller had 'stated, and asserted pertinently: It is the Union's position that the Company has clearly outlined the reduction in orders , business levels at this time and over the past couple of years as 'rea'sons for not wanting -to follow past practice in granting , the year-end monetary gifts. Therefore, in order to verify the Company's position, the Union again requests the information outlined in my De- cember 20, 1982 letter to Mr . Bumby. I also wish to point out to you that I only agreed that all gifts or bonuses should be in the labor agreement and did not agree on your stated recov- ery problems, etc., that you refer to. I did agree that the Union proposed and agrees that all in- creases, except insurance , at that time are retro- active. ,On January 10, 1983, Mueller wrote Wetzel, inter alia, asserting the Union was, effectively shifting "from de- manding specific inforation, i.e., 'dollar amounts of business' to stating that you want 'to verify the Compa- ny's position "' Mueller asked confirmation, reiterating willingness to discuss "the type of information that is or should be satisfactory to- demonstrate verification of the Company's position." In. regard to'the December 20, 1982 request Mueller otherwise stated : ". . . with respect to the requested information concerning the so-called 'bonuses,' this is to request that the Union explain why the additional - information is' necessary beyond that which the Company has already provided for 1978, 1979, and 1980, which was the question originally intended. After the Company has -your' written response to this re- quest the matter will be'given further consideration " Disagreeing with Wetzel's characterization of negotia- tions, with characterization of his' own,. Mueller, inter alia, then also stated- What - has been' stated on behalf of the Company with regard to the so-called year-end bonus subject establishes that the Company has no present inten- tion of having that as -an established benefit , but the Company still considers' the matter a subject of the continuing negotiations. I do not understand the law 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of collective bargaining to preclude a party in labor contract negotiations from stating a firm frank, and honest position on a subject so that the other party may intelligently assess the matter and proceed on the subject in a way that is believed to be appropri- ate under all the circumstances, including other issues. Lastly, your assertion that the Company has no intention to "furnish the Union with the request- ed information" is completely without a factual foundation. - By letter of January 17, 1983 , the Union advised Mueller that it was turning the -correspondence over to legal counsel for action on its requests for information. On January 18 Bumby followed up with response to the Union's December 14 and .(expanded) December 20 request for yearend Christmas party information , advis- ing Employer's -files only go back 5 years; confirming Year Amount Dollar Number of Employees Dollars/Capit 1977 $229901 177 $1299 1978 • 2853 .55 178 16 03 1979 4335 76 191 22.70 1980 3860 55 178 21.69 By letter of February 10, 1983 , Wetzel advised Bumby the base average data supplied was not what the Union had requested, referring to its December 20, 1982 request for "the dollar amounts of business of the Company from 1967 to present." Wetzel then stated: The Union will accept at this time the following figures for each year in hopes those will substantiate the level of business: that there was no party for 1981 or 1982, and supplying Gross Sales ' the data as requested (on both December 14 and 20) for Total Incoming Orders all available years 1977 through 1980 as follows: Profits Sales/% of Base Ave. 1979 up 13% 1980 up 28% 1981 down 7% 1982 down 6% Incoming Orders/% of Base Ave. Profits/% Base Ave. up, 19% down.32%. down 116% (loss) down 94%-Estimate 1979 up 9% 1980 up 2% 1981 down 19% 1982 down 44% By letter of January 21 , 1983, Mueller wrote Wetzel expressing disappointment over Wetzel's turning the matter of requested information over to counsel , but not surprise ; and following, inter alia, assertion of Employ- er's (claimed) legitimate requests for clarifications, inso- far as remaining pertinent, stated: . in view of your indicated unwillingness to par- ticipate in defining what information is sufficient for verification of the "level of business" factor, the 'Company will proceed to compile "verification" data and forward the same to you. By letter of February 8, 1983, Bumby advised Wetzel, inter alia: 1 .0 In order to come up with meaningful data from which comparisons can be made, I have taken the years 1977, 1978 and 1979 for sales, profits and in- coming orders and have arrived at an average for those three years to be used as a base . These three years are representative years of our business and will provide a base from which to draw our com- . parisons. The profit figure for 1982 is just an esti- mate at this time but we feel it is quite accurate and if when our audit is completed we ,find that this figure is drastically altered, I will send the actual -.figure to you. The Union will then evaluate itself the percent of .increase or decrease in business. Please advise by return mail your position on complying with the Union's request or refusal to comply. On February 24, 1983, Buiiiby wrote Wetzel (which letter forms the basis of the contended unlawful refusal of information) pertinently, as follows:. This letter will reply to your letter of February 10 regarding the previous information I furnished the union. with reference to the company's level of busi- ness for 1979 through 1982, Frankly, Mr. Wetzel, I am at a loss as to why you continually shift and/or expand your position as to the information you request with regard to the ongoing negotiations . In your letter of December 14, 1982 to me, you simply stated that all of the in- formation you needed at that time were the names of the unit employees and the dollar "amounts given to each employee on a year-by-year basis for the year-end bonus. We immediately complied with this request on December 17, 1982 and furnished the union with comprehensive computer records for 1978, 1979 and 1980 showing this information. As was previously stated , 1981 was omitted as there was no year-end bonus or monetary gift distributed during that year. Then, in your letter of December 20, 1982 to me, you then changed your position .and requested the total dollar amount of business done by the compa- ny for the last 15 years and also, the total amount of money spent and the amount of money spent on the per capita basis for the Christmas parties held over the same 15-year period. The Christmas party infor- mation regarding the dollar amount spent was fur- nished to you in my letter of January 18 , 1983 for the years 1977, 1978, 1979 and 1980 as our records only go back five years. • ADVERTISERS MFG CO On February 8, 1983, I furnished the Union with the "level of business" information which was a follow-up to Mr. Mueller's letter of January 21, 1983. My letter contained the level of business in- formation for 1979 through 1982 with reference to sales, -profits and incoming orders. This information was compiled as a good faith attempt to satisfy the Union's request for a level of business indication re- garding the company's position-on year-end mone- tary gifts and bonuses. All of the above information has been compiled at great expense and time and if it 'was done in a genuine spirit 'of co-operation and in good faith in hopes that it would further aid both sides in reach- ing a negotiated first contract . We have repeatedly tried to co-operate with the union and try to keep up with continually shifting and/or expanding of positions, but to no avail, it appears. We have, by our attorney, on several occasions, repeatedly ad- vised the Union that the company is not pleading poverty nor has it stated an inability to give a year- end monetary' bonus. We simply and clearly stated on repeated occasions that because of the level of our business and the ecomony in general along with six other reasons which were confirmed to you in Mr. Mueller's letter of December 7, 1982, we did not distribute a year-end monetary bonus because it was inappropriate in light of these factors, the same as it was inappropriate in 1981. . Therefore, as we are not pleading poverty, nor have we ever done so, we are not going to share the Company's confidential records regarding sales, profits and incoming orders with the Union We do not believe that we are legally obligated to furnish this information under the existing circumstances. Furthermore, we believe that the extensive informa- tion previously furnished to the Union regarding dollar amounts of bonuses and Christmas gifts along with the comprehensive "level of business" informa- tion furnished is quite ample and sufficient for the Union's purposes Therefore, your request for gross sales, total incoming' orders and profits is denied, unless, as had been stated previously, the Union can substantiate why this confidential information is necessary to continue with the negotiation process. At the' hearing Bumby testified that the Union had made no request for specific 'financial information regard- ing the bonus matter prior to its-request of December 14 with which he fully complied. Bumby also testified that he could not understand why the Union (later) requested information on gross sales, incoming orders, and profits for 15 years, why it was necessary, or relevant to negoti- ation of a contract, as the Company, repeatedly had said it was not pleading poverty,-or inability to pay bonus; it was just not going to pay a bonus in •1982 for the reasons stated. Bumby otherwise testified that the main reason he did not want to supply the information (in specific) sales, profits, orders, was because these figures are highly con- fidential; as Employer is a privately owned company; and that should these facts and figures become public knowledge, it would be very injurious to the Company. 111 Bumby amplified that they have one main competitor that is located 6 'miles from their plant. Some of its former employees now work for Employer, and some of Employer's former employees now - work- there. The competitor has Employer's (product) catalog, as Em- ployer has theirs: Bumby testified that if Employer had to divulge its sales figures and profit figures, with the catalog known , and-knowing "where we are bidding" and net costs "it doesn 't take a whole lot of manipulation with the numbers to figure out where they could go, or not go, on a bid to steal one from us." Bumby asserted the Union never explained why it needed those figures for a 15-year period; or why the information Employer did supply was not enough. The parties continued after February 24 with, if not degenerating correspondence, correspondence which, in my view , does not add materially to the presentment or the resolution of the above issues, beyond the additional observation that Wetzel by letter of February 28, 1983, reiterated , ". . . all' our requests for facts , and informa- tion stand, and we will expect fulfillment of our requests as soon as possible" : and that Mueller on March 28, 1983, replied, "The Company's position on this'-matter has not changed since Mr. Bumby's February 24th letter." At hearing Wetzel testified that Bumby's February 8 information was not sufficient response to its December 20 request, as it gaye only percentages for the period 1979-1982 and the Union had requested figures for the last 15 years. Wetzel testified that the reason he had re- quested the information in his February 10 letter was: A Well, first of all we must have that informa- tion to determine whether or not the company's statements in negotiations and in their letter to us saying as reasons they 'don't want to pay the year end' bonus are factual as far as business conditions are concerned, and whether the company actually had profitable or non-profitable years, and also to determine-over the last 20 years or so, that the company paid a bonus every year We also know that- business fluctuated up and down during those periods, and for the company'now to say under the same conditions, to our knowledge, that" they weren't going to pay the bonus based on business and economics, that we wanted those facts to figure out. B. Anaylsis, Conclusions, and Findings 1. The contended 'deficiencies in the complaint allegations .,Initially to be considered are Respondent's -contentions ,based' on, the form and- scopes of allegations made in the complaint in Case, 30-CA-7496.,To the extent Respond- ent has advanced' contentions for the first time in its brief that the violations of Section 8(a)(1), (3), and (5) of the Act that are alleged -in paragraphs 6, 9, and 10 of that complaint cannot be found . because the separate but re- lated allegations of paragraphs 7 and 8 were not also al- leged to be violations of the Act, these contentions are 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found to be unpersuasive; and it is concluded they lack merit. - First Respondent had clear notice from paragraph .6 of the complaint that it was by its alleged unilateral action of discontinuing its past practice of paying a yearend bonus on November 17, 1982, that Respondent was spe- cifically alleged in paragraphs 9 and 10, respectively, to have discriminated against unit employees, and to have failed to bargain in good faith with the Union in viola- tion of Section 8(a)(1), (3), and (5). To be sure there is a related specification in paragraph 7 that the unilateral action was taken by Employer without prior notice to, or bargaining with, the Union; and a more definitive specification of Employer's discriminatory purpose pro- vided in paragraph 8, viz, that its unilateral action was taken because the employees had engaged in,' and in order to discourage employees from engaging in certain union and concerted activities for the purpose of collec- tive bargaining, or other mutual aid or protection. While the conclusionary paragraphs 9 and 10, which clearly set forth the section of the Act alleged to have been `violated by Employer's unilateral conduct alleged in paragraph 6, might more stylishly have tied in the additional specifica- tions of paragraphs 7 and 8, failure to do so was but a matter of form, not affecting the substantive violations alleged, or the adequacy of the notice thereby provided. Moreover, the entire matter of the unilateral acts and conduct so alleged to be in violation of Section 8(a)(1), (3), and (5) was a matter fully litigated by all-parties at hearing. 2. Yearend bonuses, existing wages and terms and conditions of employment, or discretionary gifts Employer next contends that its prior payments of a yearend bonus to employees were not shown by the evi- dence presented to have been paid other than,as discre- tionary gifts on its part. Respondent's argument is that its prior payments of a yearend bonus to employees have not been established by the General Counsel to be a con- dition of employment of its employees; and Employer appears to argue on that account that the yearend bonus was not a bargainable matter. Employer would rely on NLRB v. Citizens Hotel Co., 326 F.2d 501-(5th Cir. 1964); and NLRB v. Electro Vector, Inc., 220 NLRB 445 (1975), enf. denied 539 F.2d 35 (9th Cir. 1976). The General Counsel contends in contrast that Employer's payment of a yearend bonus to its employees was a component of the wages of employees; that it was a mandatory subject of bargaining; and that the payment of a yearend' bonus was not a discretionary gift that Employer could with- hold at will. The General Counsel's basic argument is that the cir- cumstances of Employer's long-established 'pattern of granting a- yearend bonus to employees meets the appli- cable test of a bonus being construed as part of the wages of employees, 'because it is shown to be of a fixed nature, paid over a sufficient length of time, such as to have become a reasonable expectation of employees; and therefore, that Employer's 'payment of a'yearend bonus had become part of their reasonably anticipated remu- neration or wages. The General Counsel, • with cause, would rely on supportive holdings expressed in Beacon Journal Publishing Co. v. NLRB, 401 F.2d 366, 367, (6th Cir. 1968); and NLRB v. Niles-Bement-Pond Co., 199 F.2d 713 (2d Cir. ' 1952). To the extent Respondent may be viewed to have ad- vanced an' argument that a payment of a yearend bonus was not a bargainable matter, that argument, if not simply to be viewed misdirected, is, in its essence, read- ily apparent as without legal foundation. An employer's payment of a bonus to employees is certainly encompas- sable within wages to be paid employees; and, as well, if agreed to, and/or established, may be viewed as consti- tuting a term and condition of employment. In its es- sence, payment of_a yearend bonus is a mandatory sub- ject of bargaining, whether part of existing wages and an existing term and condition of employment, or not, and only sought. The real underlying issues otherwise clearly being raised by Respondent are whether; as it contends, the circumstances of its prior payment of a yearend bonus do 'not establish the yearend bonus payment was part of the existing wages paid to its employees, nor an existing term and condition of their employment; and re- sultingly, that it has not been established by the General Counsel that Employer has unlawfully unilaterally changed (nor Employer shown otherwise to have discri- minatorily changed or withheld) existing wages and terms and conditions of employment of its employees. Respondent. contends essentially that, other than ,the evidence offered on its prior pattern of granting a bonus through 1980, there has been no other, evidence offered by the General Counsel to prove the bonuses were-given as an established condition of employment, rather than, as it contends, simply as a gift given to employees in the past in its (sole) discretion. Thus, Employer has argued in support that there was no prior formal policy pro- nouncement, or comrnunciation made to employees that a yearend bonus payment had been established by Em- ployer as a regular benefit for them. Respondent also argues that the General Counsel has made no -showing that there 'was any established formula governing the method of Employer's determination of the bonus amounts that were heretofore distributed; and it argues the attendant circumstances have evidenced the contrary, viz, the fact that the yearend bonuses given over the years have varied in amount from year to year proves that the yearend bonuses previously given were always granted by Employer as discretionary gifts. Further, with a stated ^ reliance on the fact that no yearend bo- nuses were paid in 1981, Respondent has finally argued that that uncontested circumstance has established either that the prior gifts were discretionary_ or that any prior condition of employment that might be viewed to have previously existed had (already) terminated. In that regard,- the General Counsel pointedly counters that while it is undisputed that Respondent did not pay a yearend bonus to unit employees in 1981, it is to be also observed that the Union at this time was still unrecog- nized by Employer as the certified collective-bargaining representative of unit employees, and its member-em- ployees were then out on strike. The General Counsel thus finally argues that under all attendant circumstances ADVERTISERS MFG. CO. the -Union has never clearly and unequivocally waived its right to bargain over the payment of a yearend bonus On the facts presented before me I have little hesitan- cy in reaching the initial conclusion on the threshhold but major question of substance- raised by the parties, that Employer's payment of a yearend bonus to employ- ees is to be concluded and found to be reasonably en- compassed within the scope of employees' existing wages, and that, over the years and in the manner paid previously, it had become an established term and condi- tion of employment of the employees in the bargaining unit under applicable Board and court precedent. Prior to 1981, the yearend bonus, albeit paid in amounts that varied- from year to year, had been regular- ly paid to employees for 30 consecutive years., An em- ployee qualified for receipt of a bonus in the very first year of employment. Federal and state withholdings have been regularly withheld from the bonus amounts paid, as on other wage earnings of employees. Respond- ent's arguments on the General Counsel's failure to show formula utilization and lack of policy pronouncement are factors that have been earlier addressed by the Board; and, in agreement with the General Counsel I conclude that the applicable Board precedent, controlling on me, is that a similar (Christmas) bonus when established as paid to employees over a far less number of years is nonetheless sufficient to be construed as thereby consti- tuted a component of wages paid to employees, and an existing term of employment of those employees, Pistoresi & Son, Inc., 203 NLRB 905 (1973), enf. denied 500 F.2d 399 (9th Cir. 1974); Laredo Coca Cola Bottling Co., 241 NLRB 167, 174 (1979), enfd. 613 F.2d 1338 (5th Cir. 1980), and further, that the absence of evidence that there was an employer formula in utilization, or, of a prior formal policy pronuncement by Employer (e.g., as omitted from the employer-distributed, employee manual), is not to be viewed as determinative or control- ling of that finding, but rather what is critical is the rea- sonable employee expectation from employer prior promise, or conduct, cf. Gas Machinery Co., 221 NLRB 862 (1975); Laredo Coca Cola, supra. On the basic signifi- cance of such a longstanding "emolument of value" which has accrued to "employees arising out of their em- ployment relationship," cf. NLRB v. Central Ill. Public Service Co., 324 F.2d 916, 919 (7th Cir. 1963). - Moreover, the unique circumstances otherwise evi- denced as present herein, viz, that an employee commit- tee in 1978, then recognized by Employer as speaking for all (unit) employees, had told - the Employer that they wanted to keep the yearend bonus payment rather than have their Employer put (even some of) its substance in the form of other increased benefits, as was then being suggested by Employer, itself speaks even more directly, and perhaps even eloquently, as to the industrial reality of employees' expectation of the Employer's payment of ayearend bonus to its employees, viz, that it had by this time-become viewed by them as an established benefit in its own right, and one they desired to keep. In short, it is concluded and found that Employer's payment of a year- end bonus to employees in 1978 was not only then con- stituted a part of-their wages, and an existing term and condition of their employment, it has revealed an-em- 113 ployee-continued expectation as to which Employer at least then had fully and clearly acquiesced. Even if the Employer's acquiescence were arguendo to be deemed reflected as otherwise in 1981, the uninter- rupted payment of a yearend bonus over the prior 30 years must be given substantial weight -as in itself evi- dencing an established, and existing term and condition of employment -of employees, cf. Woonsocket Spinning Co., 252 NLRB 1170 fn. 2 (1980). In connection there- with, the overall character of the bonuses granted, in general, and such as is revealed on review of the specific bonuses granted in the years 1978-1980 (in evidence) is more supportive of the same, than not. Amount aside, payments of bonuses were always made to all (unit) em- ployees, inclusive of those starting in first year of em- ployment, albeit in the latter category in considerably lesser amounts. Though amounts varied, amounts paid to employees discernibly regularly advanced with increas- ing years of service, as is clearly evidenced by those paid in 1979 (over 1978); and again, for the most-part in 1980 (over 1979), albeit there was discernible modest retrench- ment in 1980 in the amounts given to a significant number of the employees receiving (essentially) the higher bonuses. Nonetheless, the nature of the payments made- when viewed overall, but particularly with the yearend bonus having been paid previously over such a substantial period of time, would likely be construed as well, in my view, by the several reviewing courts as by this time of sucfficiently fixed and substantial duration as to warrant it to be concluded they were of a "regular and long duration"; and thus independently to be con- cluded on that account as to be reasonably viewed by employees to have become part of their wages, and an established condition of their employment, cf. Gas Ma- chinery, supra, 221 NLRB at 863, and cases cited there. See and compare the Ninth Circuit's seeming disposition to compatible view in Electro Vector, supra, 539 F.2d at 537. There is also clear merit, and I am wholly persuaded to the General Counsel's final observation on this sub- ject, that at the very time of the Employer's first depar- ture from its longstanding prior practice, when it an- nounced in 1981 its intended nonpayment of a yearend bonus in and for 1981, Respondent was then unlawfully refusing to recognize and bargain with the Union about wages, hours, and terms and conditions of employment of unit employees generally (clearly inclusive of the yearend bonus), despite a prior and continued request of the Union to do so. Furthermore, the announcement made by Employer in 1981 was limited to a projected nonpayment of a yearend bonus in 1981, for specific rea- sons stated, but which stated reasons were not inclusive of any prior or present. intention of. Employer to elimi- nate the payment of. a yearend bonus in general. On the legitimacy of the distinction that may be made to rest on an announcement limited in application to 1 year, and not, announced as terminating a previously established general practice, cf. Century Electric Motor Co. Y. NLRB, 447 F.2d 10, 14-15 (8th Cir. 1971). . Unlike the circumstances of the negotiation process that culminated in a timely agreement as found by the 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD court existed in Century Electric, supra, here, as noted, Employer was clearly refusing recognition'of the Union in -1981, at-the time of its announced initial, but limited, departure from past practice. After Employer eventually extended recognition to the Union as the certified collec- tive-bargaining representative, and following the end of the strike of its member-employees and return of strikers, the Union gust as clearly sought to pursue its right on behalf of all the unit employees it represents to bargain, with the Employer about a continued payment of a year- end bonus, in 1982, a subject still to be addressed. Under all these circumstances there has assuredly been no clear and unmistakable waiver by the Union of-,its right to bar- gain with Employer about the continued payment of the yearend bonus as an existing component of employees' wages, and as an existing term and condition, of their em- ployment, in 1982, cf. Pepsi-Cola Distributing Co., 241 NLRB 869, 870 (1979), enfd. 646 F.2d 1173 (6th Cir. 1981); McDonnell Douglas Corp., 224 NLRB 881, 887 (1976); Kroehler Mfg. Co., 222 NLRB 1269, 1270 (1976); Timken Roller Bearing Co. v. NLRB, 325 F.2d 746 (6th Cir. 1963). 3. The issue of discriminatory conduct in violation. of Section 8(a)(3) In support of the allegation that Employer's failure to pay the bonus in 1982 was discriminatory, the General Counsel has essentially relied on United Aircraft Corp., 199 NLRB 658, 662-663 (1972), enfd. 490 F.2d 1105 (2d Cir. 1973). In United- Aircraft, the employer had sched- uled and announced (promised) that a wage increase would be paid to the employees at a certain time, but then the employer withheld payment of the wage in- crease, without discussion with the union, for a deter- mined discriminatory reason, viz, because the employees had in the interim selected the union to represent them. The General Counsel would -also rely on certain lan- guage appearing in the Second Circuit's enforcement in United Aircraft in support of additional contention that the employer had thereby sought to enhance its bargain- ing position unlawfully, id. 'at 1110. The circumstances in United Aircraft included a clear admission by the employer that it had withheld the wage increase because it would'be negotiating with the 'union. The administrative law judge consequently concluded that, though not _so expressed by the employer, the em- ployer had withheld the raise because the employees had selected a union to: represent them..The'Board approved the findings made, and the court affirmed, 'that the em- ployer's withholding of the scheduled wage increase; be- cause employees had selected a union to represent them, was clearly discriminatory and discouraging of that pro- tected activity; and -that pioof• of the-employer's motiva- tion was unnecessary because the -employer's conduct was, "inherently -destructive" of important employee rights, with reliance' on NLRB v. Great Dane, Trailers, 388 U.S. 26 (1967). ' . I I . -The General Counsel's- subordinate, arguments here are: that the Employer's obligation with regard to a con- tinued payment of the yearend bonus in 1982 is to be lik- ened- to the scheduled and announced wage increase in United Aircraft; that the 1982 yearend bonus was already earned as a result of work performed by the employees- over the calendar year 1982, - and that in that sense the yearend bonus is analogous to the scheduled wage in- crease that the employees had been previously promised and thus similarly had every expectation would be paid. It is the General Counsel's contention that Employer's withholding of the yearend bonus in 1982 should be found discriminatory, as it was in United Aircraft, be- cause similarly here, one of the Employer's asserted rea- sons-was stated to be because some of the employees had engaged in a strike, and others did not. The -General Counsel also argues that proof of Employer's motivation is not needed because its conduct here is also to be viewed as "inherently destructive" of important employ- ee rights. Passed is the General Counsel' s animus claim arising from prior administrative law judge's unfair labor practice findings. Employer, with its own asserted reliance on Great Dane, advances contentions severally, that: unlike Great Dane there was here no disparate treatment of employees who were engaged in a strike; that Employer has ad- vanced and established legitimate business justifications for its conduct, that its conduct was not discriminatorily accomplished;' and that there was no independent evi- dence offered in this case to reveal an unlawful motiva- tion by Employer otherwise. There is no question that discouraging membership in a labor organization "includes discouraging participation in concerted activities . . . such as a legitimate strike." NLRB v. Erie Resistor Corp., 373 U.S. 221, 233 (1963). In Great Dane, supra, with "discrimination and "discour- agement" apparent from disparate treatment afforded strikers and nonstrikers in respect to an employer-ex- tended payment of accrued vacation pay to nonstrikers only, the Supreme Court in addressing the remaining contested issue of `the employer's motivation stated, 388 U.S. at 34: [S]everal principles of controlling importance here can be distilled. First, if it-can reasonably be con- cluded that the employer's discriminatory conduct was "inherently destructive".of important employee rights, no - proof of an antiunion motivation is needed and the Board can find an unfair labor prac- tice even if the employer introduces evidence that the conduct was motivated--by business consider- ations. Second, if the adverse effect of the discrimi- natory conduct on employee rights is "comparative- ly slight," -an antiunion motivation must be proved to, sustain the charge if the employer has come for- ward 'with evidence or legitimate and substantial business justifications for the conduct. Thus, in either situation, once it has been, proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon- the employer to es- tablish that he-was -motivated by legitimate objec- tives since proof of motivation is most accessible to him. The payment of a yearend: bonus was an established condition of employment. However, the General Coun- ADVERTISERS MFG. CO. sel's argument on the basis of -an accrued bonus is unper- suasive. In terms and accrual and/or distribution qualifi- cation, it is only established by the evidence offered that an employee qualified for a bonus payment if employed at time of distribution. The record does not establish that there was a past practice of a set time for bonus distribu- tion, beyond that arguable from the generalized sugges- tion emanating- from. yearend bonus/gift nomenclature that it would be paid before year end. There was no evi- dence offered that any employee leaving employment prior • to -that distribution period had ever received a bonus as earned for work previously performed. If any- thing is to be viewed as more definitively shown on dis- tribution period it is by reference to an Employer's board of directors action scheduled for December 11, -1981, in regard to a then recommended decision that Employer not pay a bonus in 1981, for reasons stated, of which the Union was made aware. Assuming however that a pay- ment of a yearend bonus, as an established condition of employment, is nonetheless analogous to the scheduled and announced increase found in United Aircraft, cf. Struthers Wells Corp., 262 NLRB 1080, 1081 (1982), enf. in part denied, denied in pertinent part 721 F.2d 465 (3d Cir. 1983), as we shall see, the contended analogy breaks down on several other factors. First, Employer has urged, and I find persuasively so in -general, that it is a significant circumstance herein that absent from this case is independent evidence of unlawful motivation, e.g., current statements by Employer's super- visors and/or agents revealing that nonpayment of the bonus in 1982 was tied to the employees' prior union ac- tivities, or retaliatory, such as were found in NLRB v. Electric Radiator. Corp., 321 F.2d 733 (6th Cir. 1963); Ross Sand Co., 219 NLRB 915 (1975), and similar such cases. Woonsocket Spinning Co., 252 NLRB 1170 (1980), and Laredo Coca-Cola Bottling Co.,'supra, cases relied on by the General Counsel, would be similarly so distin- guishable. The General. Counsel's sole evidentiary argu- ment to the contrary is bottomed on Employer's written position statement of December 7, presented to the Union subsequent to bonus discussions of the parties of November 15 and 17 and December-2. Significantly lim- iting the analysis required to be made is the fact that nei- ther party has advanced contentions or arguments resting on claim of disparate interests of strikers,-or nonstrikers as separate groups in regard to the contested payment of a yearend bonus in 1982, of the type paid in years past, see and compare Industrial Workers Local 289 (Seeburg Corp.) v. NLRB, 476 F.2d 868, 877-878 fn. 17 (D.C. Cir. 1973). It is contended by the General Counsel that Re- spondent in outlining its reasons on that occasion in writ- ing at union request (essentially) stated that it would rather not pay a yearend bonus because of the split work force in 1982 resulting from the strike. It is the General Counsel's argument therefrom that Respondent in its own words has thereby stated (admitted) that one of the reasons that it did not pay the yearend bonus to employ- ees was because some of them went on strike. It is ob- served in passing that Employer apparently makes relat- ed claim that disparate treatment is an essential underpin- ning for a discrimination to,which the Great Dane "in- herently destructive" standard on employer motivation 115 may find application. I do not find either contention per- suasive. Disparate treatment, or treating like categories differ- ently, may appropriately be viewed as falling within the quintessence of discrimination; and where that difference is based on an exercise of protected concerted, or union activity, an unlawful singling-out, or discrimination is perforce present, cf. Rubatex Corp., 235 NLRB 833, 834- 835 (1978), enfd. 601 F.2d 147 (4th Cir. 1979). However, a disparate treatment of those exercising union, or pro- tected concerted, activity Section 7 rights does not ex- clusively constitute the essential element of unlawful dis- crimination . Thus, contrary to Respondent's urgings, an unlawful discrimination may appear, whether or not shown intended, by an act visited on an entire class, e.g., on all employees, because of an exercise by some, or all employees, of either of those protected activities, see NLRB v. Borden, Inc., 600 F.2d 313, 320-321 (1st Cir. 1979); Industrial Workers Local 289, supra, 476 F.2d at 877. United-Aircraft, supra, is but one example of a discrimi- natory act "inherently destructive" of employee rights, where employer's actual motivation was unnecessary to evaluate because of a statement it made. The specific statement made by Employer and alluded to by the Gen- eral Counsel for comparison was the first of seven stated reasons, though there was employer disclaimer that order of appearance indicated any paramountcy. The statement made specifically is: 1. Due to the split work force in 1982 as a result of the strike, the Company would rather not con- front the question of whether the gift should be dis- tributed to members of each work force. The General Counsel would have that statement con- strued as in effect constituting an-admission by Employer that one of its reasons for not paying the bonus was be- cause some of them went on strike; though on other oc- casion the argument is stated more encompassingly that the asserted reason was because some had engaged in a strike, and, in seeming sacrifice of industrial probability, because others had engaged in the protected right to re- frain from - strike activity. Either way the deduction urged appears ' as a strained one, in emanating from an unclearly supportive base. On its face, the statement made by Employer certainly does not explicitly state that the position held by Em- ployer was that the bonus.would not be paid to strikers, or to both work forces (all employees) because certain employees had engaged in a strike. While the statement clearly acknowledges that a split work force (strikers and nonstrikers) had resulted - from the strike; and as clearly reveals that Employer had a stated preference, or disinclination on the part of the • Employer to. address a certain question, that qustion or subject, in my view, is not otherwise clear in its meaning. - The critical factual issue it seems to me is what do the words, "the question of whether the gift should be dis- tributed to members of each work force," reasonably mean, on their face, and in context. For example, do the above terms mean that the question entertained by Em- 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer at this time, but which it -preferred not to con- front was whether, or not, the gift should be distributed at all because of the circumstances of a split work force; or, to the question of whether the gift should be distrib- uted to one class of work force, arid not to the other, or to neither class because one class engaged in a strike, as appears more realistically to be selectively contended by the General Counsel was done (though appearing the less likely meaning of the statement), or, whether it was preferred not to confront questions of distributions to (in- dividual) members of each work force for other valid and lawful reasons. In my -view the statement made by Employer on its face is simply too ambiguous and/or un- clear in meaning to draw the selective admission as urged by the General 'Counsel, viz, that Employer • here has admitted that one of the reasons that it was not going to, pay the bonus was because some of its employ- ees had engaged in (protected) strike, or other activity. I am but strengthened in that view when the other circum- stances are reviewed. Record evidence has made it clear that bonuses paid to individual employees- varied in amount, from year to year. No formula was established. From what appears of record there had.been in the, past a significant measure of discretion in Employer's arrival at the amount to be dis- tributed collectively, and individually. Unit employees had also worked varying amounts of time in 1982. Cer- tainly the workttme of some was directly affected by, the engagement, or nonengagement,.in. protected strike activ- ity; but the worktime of still others was affected by both strike period and, by poststrike economic conditions of short weeks and/or layoff. Additionally there was an ac- knowledgment of the possibility of lingering effects of the strike in 1982, as still existing between the work forces, of sufficent degree and nature to result in contem- poraneous agreement by-both Employer and the Union that` the holding of a Christmas party should be ( again) forgone that year.; Finally the -payment of a yearend bonus' had been a subject introduced in recent discussion, and its ramifications increased in degree of discussion in the past two negotiation meetings, with all parties con- ceding it was discussed freely and-fully in'depth on De- cember-2. Wetzel confirmed Mueller's declaration that it would'be very difficult to pay a-bonus.•I-have -no doubt all the above •coiisiderations were explored by at least the time of the in-depth discussion of December 2. -The Union and the negotiating committee were fully aware of these difficulties. I am-a's well'persuaded the.employ- ees were generally aware 'of many of the difficulties; in- dependently. - - • • ^ , ' - The General 'Counsel has advanced relatedly the argu- ment that the Union had 'proposed a solution for' the dif- ficulty, viz, that the lionus be distributed on the simple basis of -time actually worked by the unit employees that year, to no 'avail, 'and-with ho-counterproposal 'made by -Employer. Apart from the Union's approach-being with 'appearance of itself constituting a significant departure ,from; employer' practice-in distribution in past years; the absence,of an Employer's counterproposal thereto argu- ably might have contributed -more persuasively to. the General Counsel's argument for a finding of an underly- ing discriminatory motivation -on the -part of the Employ- er, had other,reasons for nonpayment of the bonus-not been also advanced by Employer, and Employer thus be discerned to have left its flat rejection of the Union's of- fered solution the more questionable as made in good faith, rather than as evidencing its solely advanced reason was but a pretext. But other reasons were ad- vanced by Employer (discussed, fully infra), inter alia, on basis of-a poor level of business experience for an ex- tended time While it is noted'that there was no specific reference in the December 7 letter to additional claimed effects of the strike on work productivity and efficiency, nor profitability explicitly expressed, both were items of prior communication (1981), present discussion, and sub- sequent communications. That an employer might simul- taneously entertain legitimate concern over addressment and treatment of-the various attendent difficulties to be faced in grant of any yearend-bonus to employees under the above circumstances would..appear not to be gain- said. That it might simultaneously state its preference to the' Union not to do so where other weighty reasons are present and advanced as 'warranting the same action would appear to aid and advance, not obstruct, collec- tive bargaining on the matter. The bonus was not paid to either work force; indeed, it was not paid to anyone in 1982. While not dispositive, it may be observed as supportive that there was no ap- parent disparate treatment of strikers, or favored treat- ment of nonstrikers; and such cases as Sevakis Industries, 244 , NLRB 1122• (1979); and Electro 'Vector, Inc., 220 NLRB 445 (1975), enf. denied 539 F.2d 35 (9th Cir. 1976), in that respect, are to be deemed' inapposite. In regard to the claim advanced by the General Coun- sel in connection with alleged discrimination, that the Employer has sought to unlawfully enhance' its bargain- ing position, at the outset it may be observed that in Pis- toresi & Son, Inc., 203 NLRB 905 (1973), a case centrally relied on by the General Counsel otherwise on its hold- ing of an unlawful unilateral activity, a Board panel ma- jority consisting of . then - Members Jenkins and Penello expressly agreed with an administrative law judge's de- termination that where an employer's withholding of a Christmas bonus was with stated purpose, "to offer the largest possible wage increase," it was-for a legitimate business reason, and was conduct that did not itself vio- late. Section 8(a)(3) of the Act. - - While-later disavowing that Employer ever proposed that all the substance tof• a 1982 bonus and Christmas party grant was earmarked ,for increassed wages and ben- efits, . Employer did earlier propose at least in' general terms that negotiations proceed on the basis of the bonus being;reflected in the total cost factor of the labor agree- ment, and to continue to propose that approach, howev- er eventually to be agreed upon, whether incorporated into (some). dollar amounts in a. total package, or in form a - bonus , negotiated as part of a settlement, and . paid at that later . date; or not at all . -Nonetheless it is contended by the General Counsel that :in discontinuing, or with- holding, payment of the yearend bonus in:1982 , Employ- er has sought, to unlawfully enhance _its bargaining posi- tion, based on the subsequent enforcement of United Air- craft, supra,.by, the Second Circuit Court of Appeals, 490 ADVERTISERS MFG. CO F.2d at 1.110, where the court in addressing the employ- er's similar contentions, "that it was entitled to withhold the wage increase in order to improve its bargaining po- sition in the anticipated negotiations with the Union," and "could lawfully make it part of the `entire economic package' to be offered," subsequently stated (ibid ): If the Company's position were accepted, an em- ployer would appear to be entitled, in the hope of improving his bargaining position, to alter all condi- tions of employment after union certification, reduc- ing wages to the legal minimum and allowing the work environment to deteroriate. The devasting impact that such action would have upon employee exercise of Section 7 rights is indisputable. While the business purpose would, be "'substantial," we could not characterize it as "legitimate." Summarizing, in both Pistoresi & Son, supra, and-,in United Aircraft, supra, the Board determined that the re- spective employers involved had acted without any prior discussion with the unions respectively involved, thus unilaterally. In Pistoresi & Son the Board found no viola- tion of Section 8(a)(3), but did find a violation of Section 8(a)(5) on the basis of the employer's unilateral change of the existing wages and terms and conditions of employ- ment without bargaining. In United Aircraft the Board found violations of both Section 8(a)(5) and (3). Pointed- ly in United Aircraft there,was not only the similar uni- lateral change without prior discussion with the union then representing employees, but there was also the addi- tional employer admission that had clearly revealed the employer's conduct had been taken directly as a conse- quence of certain protected union activity, viz, the em- ployees' interim selection of the union to represent them. Accordingly, the conduct for that reason carried its own evidenced discrimination and was "inherently destruc- tive" of that protected activity. It would appear the court's enforcement remarks are to be viewed in that subordinate case-light. I also observe that in rejecting other arguments advanced by employer of a claimed di- lemma it faced in granting 'or not granting the. scheduled increase, the court noted the employer could have avoid- ed all its difficulty by a discussion with the union. I am thus not persuaded that the court's remarks, if so relied on by the General Counsel, are authority for the proposi- tion that a -general posturing of a party, in commence- ment of, or during collective-bargaining, that may in- volve a regressive position on existing wages and terms and conditions is thereby constituted an unlawful en- hancement of bargaining position evidencing discrimina- tion. Such positioning in bargaining would appear of too longstanding prior allowance; indeed, to be discerned as becoming of only the more common occurrence in light of current "take back" bargaining -postures. Cf.; Billion Oldsmobile-Toyota, 260 NLRB 745, 755 (1982), enfd. per curiam.700 F.2d 454 (8th Cir. 1983); particularly where a party's regressive bargaining posture has grown more fa- vorable as negotiations progressed, see Carlsen Porsche Audi, 263 NLRB 141 (1983). Thus if claim is made as herein that an employer's act is a discrimination, but is of a nature without need for 117 any evidentiary demonstration of the employer's actual motivation in performing the act because the discrimina- tory act is itself. inherently destructive of important em- ployee rights, both the fact of a discrimination in the act and the causal relationship of the discriminatory act's oc- currence to the specific protected activity must clearly `appear. More pointedly it seems to me that the difficulty with an acceptance of the General Counsel's argument is that for showing a discrimination the General Counsel advances claim of an act (statement of one reason for withholding bonus) in negotiations as revealing the act was taken directly because of some employees having en- gaged in a protected strike. However, in doing so solely on the basis of the instant employer statement ignored are the also evident circumstances that Employer's' state- ment on its face was in nature more discernibly and rea- sonably to be concluded as reflecting Employer's prior addressment in negotiations of difficulties of broad and remaining effects of an already ended strike, rather than its taking action specifically, or expressly as related to certain employees having engaged 'in the strike in the first place. - In any event, it is concluded and found that absent an employer admission such as found in United Aircraft, one that reasonably and' clearly establishes that employer's action did involve a discrimination, or was an action un- dertaken directly because of employees' engagement in a protected activity (as well as involving a discrimination of nature reasonably to be concluded as inherently de- structive of exercise of that right), some evidence of mo- tivation to discriminate by act must be shown. As I find no independent evidence of discrimination and I find the General Counsel's offered substitute argument from the December 7 statement resting on too-strained a deduc- tion for that purpose, indeed considerably contraindi- cated by surrounding circumstances, it would appear as well even if the position adopted by Employer during negotiations was, one regressive of .existing wages, and terms and conditions-of employment (as it was herein), it is not shown thereby as discriminatory in itself, nor is to be held to be in itself in violation of. Section -8(a)(3). When, and if an employer'is free to make changes in ex- isting wages and terms of conditions of employment while under obligation to bargain is surely another matter, but a matter, it seems to me, sounding' solely in 8(a)(5) considerations Finally, even if Employer's other statements made in negotiations to the effect that the nonpayment of a bonus in 1982 would be incentive for both parties to- reach a quick agreement were deemed equatable to an employer's use _ of a withheld , benefit as unlawful "leverage" to get a total agreement, that simi- larly would sound in Section 8(a)(5), see, e.g.,-Struthers Wells Corp., supra, 262 NLRB at 1081 (enforcement ap- pears denied in pertinent part Struthers v. NLRB, supra). In passing I would only additionally observe, contrary to Employer's urging, that were-the fact warranted to be found otherwise, viz, that the statement, did constitute an admission that the Employer's action was taken in part because some of its employees had earlier engaged in the strike, and thus the act be determined discriminatory, I would reject Employer's other. arguments based on re- 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suiting "comparatively slight" discrimination. In my view withholding the bonus in 1982 , even in part for-that reason and during period of negotiations , would be "in- herently destructive" of the important and fundamental employee right to engage in a strike . In short, and to the extent Respondent's -argument may appear. to raise such claim, I do not . envision the "comparatively slight" standard as having application to a matter of definitive- ness of a discrimination , or presence of economic consid- erations, but rather apply to the evaluation to be made of the reasonable effect of a clear discrimination on the ex- ercise of the involved Section 7 right. Essentially, where my view differs from that urged on me by the General Counsel is on the fair meaning to be attributed to the statement in issue; and perhaps as well, as to where in this case the proper line of accommoda- tion in the statutory scheme of collective bargaining is to be drawn. In my view it must encompass permissively a party's good-faith addressment of an issue, with full and unimpeded statement of a party's -position on the issue, including, as here, an employer's frank statement in as- sessment of its work force status ,- and related problems it envisions it faced following a 10-month strike, without automatic construction of a- discrimination being present because in doing so it has made reference to a strike, or to split work force difficulties, where discrimination- of employees for having engaged in a strike is ' not other- wise established . Just as the same employer act or state- ment may, but need not, reveal that both discrimination has occurred and that the discrimination was with an actual employer motivation to retaliate, or to punish em- ployees for engagement in protected activity, in my view, if the Act is to continue to have reasonable rela- tion to industrial reality , an employer in statement of bar- gaining position to the union , may make a fair address- ment of the fact of a strike, and/or of its resulting ef- fects,, without an automatic construction of an employer's discrimination of some employees for having engaged in a strike being -drawn solely perforce of the reference to the strike occurrence, or its appraisal of resulting strike effect difficulties. There remains to consider whether Employer's conduct nonetheless was violative of Section 8(a)(5) in the manner in which change was otherwise ac- complished. 4. The alleged refusal to bargain in good faith; unilateral conduct in violation of Section 8(a)(5); and related issues of fait accompli bargaining, or requirement of impasse Having established, as earlier found , that Employer's payment - of a yearend bonus was, and had remained, a component` of employees' wages, and an einsting term of employment for subsequent collective -bargaining pur- poses (in 1982), the General Counsel 's contention that, Respondent has violated Section 8 (a)(5) and' (1) appears essentially two-pronged; namely, that Employer has re- fused to bargain in good faith with the Union regarding payment 'of a yearend bonus; and "that Employer has un- lawfully unilaterally discontinued payment of the year- end bonus in 1982 . It is thus the General Counsel's con- tention that Respondent entered negotiations with a closed mind on the subject and with a predetermined re- solve not to budge from an initially stated position that it would not pay the yearend bonus; and that in that re- spect, Employer had acted unilaterally in effectively pre- senting the Union with a fait accompli . The General Counsel also contends that the Employer was not free to implement its decision not to pay the yearend bonus in 1982, since there could be no bargaining impasse as Em- ployer's conduct in not paying the yearend bonus in 1982 arose out of, and was an integral part of, its above un- lawful conduct. - - The General Counsel has supportively contended that the Employer has not offered any legitimate business jus- tifications for. discontinuing the yearend bonus payments in 1982; and it is argued that the reasons set forth by Employer in the December 7 letter were but self-serving statements of negotiation positions . The General Counsel has also argued that the letter in regard to statement of poor_ level of business lacks credibility because it did not specify . Respondent's level of business . The General Counsel has additionally argued that Bumby's testimony that the bonus could .have been paid was contradictory of claim of. poor business condition ; and it is further argued that Employer's assertions that it had the change under consideration for years is to be concluded spuri- ous. ' The complaint does not allege, nor has the General Counsel explicitly contended , that Employer has en- gaged in surface bargaining, usually to be associated with a respondent's overall bargaining posture as being "with- out serious intent to adjust differences and to reach an acceptable common ground," NLRB v. Insurance Agents, 361 U.S. 477, 485 (1960). Here the General Counsel has advanced similar such contended failures by Employer, but only as to Employer 's bargaining posture on the single subject of yearend bonus. At hearing the General Counsel also clarified that general bad-faith bargaining was not being contended, but rather that the certain al- leged, and contended , failure to bargain in good faith was limited to.the conduct that was specifically charged as unlawful in the complaint. I am persuaded that the General Counsel's arguments essentially dispute employ- er hard bargaining on one subject , and are urged in sup- port of contended bad-faith bargaining on that subject alone. I shall address the issues presented - in context pre- sented by the, General Counsel . See Central Virginia Electric Cooperative, 254 NLRB 417, 418 (1981). Respondent ,defends that the facts in evidence simply do not support the basic allegations of the complaint, nor 'the contentions of the General Counsel that the Employ- er has either acted unilaterally, or that it did not bargain in good faith with the Union in regard to the subject of yearend bonus-gift payment. To the contrary , Employer contends the evidence of record , and applicable Board and court precedent, warrants findings : that it has per- missibly adopted and stated its bargaining position frank- ly; that Employer otherwise fulfilled its collective-bar- gaining duty with the Union ; and that it did not present the Union with a fait accompli , or act unilaterally in its action of not disbursing a yearend bonus in 1982, or delay- ing a payment of a yearend bonus for 1982. ADVERTISERS MFG. CO. Respondent -contends the evidence presented has estab- lished. that it had not made a decision on the matter of payment of a yearend bonus before the Union brought the subject up in the negotiations conducted on Novem- ber 15; that its stated position and subsequent conduct were based on legitimate business objectives, with sever- al reasons advanced in support which were not specious, that it presented the Union with a full and timely expla- nation of its several reasons for the position it, took in regard to nonpayment of the yearend bonus in 1982, and its present intent not to pay a bonus as it had before; that the Union had ample opportunity to bargain thereon, to offer counterproposals and arguments for its position, and did so; that it was the Union that cut off discussions (in their meeting negotiations) after December 2; and that Employer's bargaining conduct, under all the cir- cumstances, did not present the Union with a fait accom- pli because Employer had also concurrently declared a willingness to continue discussions looking to contractual provision for payment of a bonus, inclusive of one for 1982 on the basis of a retroactive payment of the bonus, if agreed to by the parties as part of their first contract; and, because the Union had subsequently stated a will- ingness to attempt to negotiate a contract on that basis. In the defense. of its bargaining conduct,, Respondent has stressed fundamentally the holding of NLRB v. American Insurance Co., 343 U.S. 395, 404 (1952), where the Supreme Court stated in regard to the rights of par- ties engaged in collective bargaining: Thus it is now apparent from the statute itself that the Act does not encourage a party to engage in fruitless marathon discussions at the expense of frank statement and support of its position. And it is equally clear that-the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements. Acknowledging that the parties are not to be required to contract on any specific term, American Insurance, supra, and, as well, the statutory limitation placed on the Board as construed therein, and in similar remedial case (each resting on the Act's fundamental policy in support of a party's freedom of contract) H. K. Porter Co. v. NLRB, 397 U.S. 99, 108 (1970), the General Counsel nonetheless has in turn stressed the Supreme Court's other admoni- tion on the _parties' concurrent statutory obligation in Section 8(d) to bargain with one another in good faith, viz: ". . . they are bound to deal with each other in a serious attempt to resolve -differences 'and reach - a common ground," NLRB `v. ' Insurance Agents, 361 U.S. 477,485-486 (1960)" It has been warrantedly observed: "There is obviously- significant, tension between these provision's.- Cf. Huck Mfg Co. v: 'NLRB, 693- F.2d 1176 (5th Cir. 1982): - ' -Both= parties- would also rely -on NLRB v. Katz, 369 U.S. 736, 747-748 (1962), where the Supreme Court in review of i certain employer actions taken unilaterally 'during negotiations, stated: - Unilateral action by,an employer without prior dis- cussion with the union does- amount to a refusal to 119 negotiate about the affected - conditions of employ- ment under negotiation, and must of necessity ob- struct bargaining, contrary to the congressional policy. - It will often disclose an unwillingness to agree with the union . It will rarely be justified by any reason of substance . It follows that the Board may hold such unilateral action to be an unfair labor practice in violation of § 8(a)(5), without also finding the employer guilty of over-all subjective bad faith. While we do not , foreclose the possibility that there might be circumstances which the Board could or should accept as justifying unilateral action, no such case is presented here. In the above connection Employer has stressed that what is forbidden is unilateral action accomplished with- out prior discussion with the Union. It essentially con- tends that there was adequate prior discussion with the Union- here. Employer would thus rely on Board affirma- tion of a holding that there'was no violation by a nondis- criminatory change (as above indicated herein), though there was short notice to a union , and only a 2-day full consultation with the Union, cf. Simpson Lee Paper Co., 186 NLRB 781 (1970). There, a decision not to provide employees a turkey was one reached by distant corpo- rate management before the union was notified . Nonethe- less, the-decision did not appear presented locally as one unalterable and irrevocable ; and there was ample time for the expression -by the union of its full views, alterna- tive proposals, and for a reversal of the action if the union had been able to- convince the employer, id. at 784-785 . (In passing it may be observed that in Simpson Lee, relied on by Employer, it was emphasized that there was no animus evidence by the employer in that case throughout a quarter-of-a-century bargaining between the parties. On the other hand, -there, as here, the change was one that affected all employees , unit, and otherwise.) On the adequacy of the discussion , Employer responds further by advancing claimed admonition in NLRB v. Citizens Hotel Co., 326 F.2d 501 ,"505 (5th Cir. 1964); with respect to allegation of refusal to bargain by unilateral action where the parties have met and discussed subjects in bargaining, that: - It is true, of course , as recently pointed out in N.L.R.B. v. TexTan, Inc., 5th' Cir. 1963, 318 F.2d 472, 479 '481, that an employer may make changes without the approval of the 'union as•the bargaining agent. The union has no•absoliite veto power under the Act., Nor do negotiations necessarily. have to ex- haust themselves to the point of the so-called im- passe. But there must be discussion prior to ;the time the change is initiated. An employer must at-lest inform the union ; of -its,proposed actions under'cir- cumstances which afford ; a reasonable opportunity for counter arguments or proposals . - s, ,, . • ; . The General Counsel , however ; advances later, state- ment of Board view that, absent extenuating circum- stances, an employer must go beyond mere discussion, and must bargain to impasse prior to,implementing uni- lateral changes, as expressed in Winn-Dixie 'Stores, 243 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 972, 974-975 (1979), where the Board had occa- sion to state: We conclude, however, that the requirement that the parties reach impasse before a unilateral change may be lawfully implemented, rather than. merely discuss a proposed change, is in- accord with the basic tenets established by the Court in N.L.R.B. v. -Katz, as quoted above, and by Congress in enacting Section 8(d) of the Act.2 In the later case of Aeronca, Inc., 253 NLRB 261, 264 (1980), enf. denied 650 F.2d 501 (4th Cir. 1981), howev- er, the Board found that an employer had neither bar- gained with a union over discontinuance of a turkey bonus nor afforded the union a reasonable opportunity to do so, citing Citizens Hotel, supra. In Aeronca the case circumstances were that the employer, in poor financial condition, had made a decision to discontinue the turkey bonus nearly a year before it had notified the union. The Board concluded: "Even though Respondent may have been willing as it contends, to discuss the matter, it did not inform the union of its proposed actions prior- to its decision in the matter or under circumstances which af- forded a reasonable opportunity for counter arguments or proposals." The case left unmentioned, and thus un- clear, whether (or not) the required reasonable. opportu- nity for counterarguments or proposals was to be one to extend to party exhaustion of reasonable counterargu- ments or proposals, in short, impasse.-Cf. Taft Broadcast- ing Co., 163 NLRB 475 (1967), enfd. sub nom. Television Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968), where the Board stated inter alia, ". . . a deadlock is still a deadlock whether produced by one or a number of sig- nificant and unresolved differences in positions." The Taft Broadcasting case otherwise broadly guides, 163 NLRB at 478: - An employer violates his duty to bargain if, when negotiations are sought or are in progress, he unilat- erally institutes changes in existing terms and condi- tions of employment. On the other hand, after bar- gaining to an impasse, that is, after good-faith nego- tiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilateral changes that are reasonably comprehended within his preimpasse proposals. Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the ne- gotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous 2 The Board's reference was to the Supreme Court's statement- in NLRB Y Katz (369 U S 736 at 743) that A refusal to negotiate in fact as to any subject which is within § 8(d), and about which the union seeks to negotiate, violates § 8(a)(5) though the employer has every desire to reach agreement with the union upon an over-all collective agreement and earnestly and in good faith bargains to that end We hold that an employer's unlateral change in conditions of employment under negotiation is similarly a violation of § 8(a)(5), for it is a circumvention of the duty to negoti- ate which frustrates the objectives of § 8(a)(5) much as does a flat refusal understanding of the parties as to the state of nego- tiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed. [Citations omitted.] In the later case of Central Virginia Electric Coop., 254 NLRB 417 -(1981), Administrative Law Judge Bernard Ries in review of Winn-Dixie Stores holding, and a simi- lar argument advanced by the General Counsel therein, concluded, "I cannot believe, on reflection, that the Board would require any less than bargaining 'to im- passe' about any change in a mandatory subject of nego- tiation . . . the Board's analysis in Winn-Dixie of the nature of the 8(a)(5) obligation makes any other conclu- sion untenable." Id. at 423. However, on the nature of the impasse required, e.g., as to required impasse on sub- ject, or entire contract, after a review of many of the au- thorities urged by the parties herein, Judge Ries also was led to conclude, "It is not entirely clear to me, after re- viewing the foregoing authorities, that despite the amount of notice and consultation with respect to imple- menting a specific change in working conditions, an em- ployer is precluded from implementing that change if no impasse has been reached as to the entire contract." However, the Central Virginia case then went off on firmer finding of the employer decision being shown pre- sented to the union as a fait accompli. Id. at 424. As noted it would appear that the Board continues a stated requirement of existence of an impasse in bargain- ing (absent waiver) before an employer may effect a uni- lateral change, and to also view an employer's act of withholding an existing (upcoming) wage or similar es- tablished term and condition of employment with an em- ployer-stated purpose to prevent loss of any "leverage" employer has to.get a total agreement, as an unlawful en- hancement of bargaining position in violation of Section 8(a)(5), cf. Struthers Wells Corp., supra, 262 NLRB at 1081, a view controlling on me; albeit it also appears that on facts of that case that an impasse was precluded be- cause of the employer's determined bad-faith bargaining in other respects. As it would in any event appear under Board view as correlative to continuing principle that good-faith bargaining is a prerequisite to impasse, that bad-faith bargaining would render a claim of impasse ir- relevant, I shall address the parties' above arguments based on bad faith, or fait accompli bargaining first. Contrary to the urgings of the General Counsel, and in agreement with Employer's contentions, I conclude and find that the reasons initially advanced by Employer and discussed in bargaining on November 17, discussed by the parties-in depth on December 2, and summarized by Employer in -writing on December 7, are supported by the weight of the evidence offered and did qualify as being legitimate business justification for the positions it took in bargaining. Thus, to begin with, Bumby testified credibly and without contradiction that he had later per- sonally and accurately compiled from Employer's records the certain data on sales, orders, and profits that was subsequently supplied to the Union in support of Employer's earlier claim that there had been a deteriora- tion in level of business starting in the end of 1980, and extending through 1981 and 1982. That data and that tes- ADVERTISERS MFG CO timony are uncontroverted on this record , and it estab- lished that in comparision with base averages in sales, orders, and profits as arrived at from averaging repre- sentative years 1977-1979, Employer's subsequent sales, incoming orders, and profits were substantially down in 1982, as well as confirming it operated at a loss in 1981. The same data was thus additionally corroborative of Employer's earlier report given to the Union in 1981 containing Employer's asserted reasons for not paying a bonus in 1981 , as essentially being due to an anticipated nonprofitable year in 1981 . There- is thus simply no war- rant to conclude, on the only evidence presented of record, that the level of business of Employer had not in 1982, as claimed by Employer, continued at a poor level over an extended period, essentially one dating since a bonus was last paid employees in 1980. Further claims of Employer supported by testimony and/or uncontested, along with the evidence of related, concessions by the Union, as to substantial loss of gross revenues being (at least) in part occasioned .by the strike in 1981 during Em- ployer's busiest period, and of contemporaneous lost pro- ductivity and efficiency because of factors related to op- erations during the strike , were all but further confirma- tory of Employer's status at time of deciding not to grant a yearend bonus in 1981 . Similarly the continuance of the strike in 1982, and more so the ongoing reports to the Union bearing on periods of slow orders and production, layoffs and short weeks in the second half of 1982, are all but additionally confirmatory that the claimed busi- ness decline had continued well into 1982, and that the Union was generally aware of it . The General Counsel's broad assertion that Employer 's claims in this regard as generalized in December 7 letter were self-serving and to be rejected for lack of specificity on level of business de- terioration must itself be rejected for lack of evidentiary support. The General Counsel's additional argument, that Bumby's testimony to the effect that a bonus could have been paid by Employer was inconsistent with his above testimony on Employer's deteriorated level of business, is also found not persuasive It rather appears that Bumby's testimony was that Employer possibly could have paid a bonus. Other assertions were made in response to the Union's request for certain financial information that was asserted by Employer to rest on an improper union view of Employer's position, namely, that Employer had re- fused to pay a yearend bonus in 1982 with advancement essentially of a claim of an inability to pay the bonus. Employer's written clarifications make it clear that Em- ployer was seeking at that point to make a clarification that it had not earlier made any claim of an inability to pay a bonus, but rather stated that its position was, for the specific reasons advanced, that in those circum- stances, it was inappropriate, or it would be inadvisable, to pay the bonus in 1982 . I_am however persuaded that this Employer's attempted clarification more probably occurred after the fact of the Union's request on Decem- ber 20 for information on dollar amounts of business and bonuses granted over the past 15 years. Bumby's testimo- ny was given in relation to that contention In any event, the General Counsel's assertion, that Bumby's testimony that the Employer (possibly) could pay the bonus was in- 121 consistent with Bumby's testimony and Respondent's as- sertions as to the level of business deterioration, must be rejected as unpersuasive. (Whether in the light of the cir- cumstances of the Union's specific requests for data the Employer's subsequent specific responses were appropri- ate and/or adequate to meet its 8(a)(5) obligation is wholly another question, to be discussed and resolved infra ) Perhaps to be considered the argument with initial ap- pearance of greatest allure is the General Counsel's con- tentions that Employer's assertion * in the December 7 letter that it had been considering the discontinuance of the monetary gift for at least several years was self-serv- ing, and Bumby's offered testimony in support, that he and President Mench had discussed the change in recent years was unconvincing in light of prior inconsistent ac- tions by Employer in. continuing to pay the bonus. How- ever, even such contentions do not withstand close evi- dentiary scrutiny, and in the end are observed to have possessed but surface allure. First, the fact is Employer raised that contention as one of several in negotiations; and there is no evidence offered that it was not among the subjects discussed in the December 2, in-depth, discussion. Moreover, Bumby has testified without contradiction that Employer had first proposed to an employees' committee in 1978 Em- ployer's alternative suggestions (views) for a nonpay- ment, or a reduced payment, of a yearend bonus/gift, that would be accompanied by an employer payment of increased wages and benefits to employees, and thus effect a perceived greater dollar value, or use. Although it is established that Employer did not make any change because of employees' stated objection at the time, I am no less convinced by the above uncontroverted evidence that it is established that Employer had under active con- sideration such a proposed change in payment of a year- end bonus of either discontinuance or reduction (with in- crease of wages and benefits to employees) as early as 1978, notably one of the representative years of (normal) business. Employer had thus entertained a consideration of making such a policy change prior to any union activ- ity, as Employer has urged it to be observed. Bumby's additional testimony, that when the Union first raised the subject (of when payment of a bonus in 1982 would be made)-his response was that it had not been discussed or thought of by management at the time, was not only a statement confirmed, the same is clearly a statement indicative that a decision not to pay a bonus had not already been made by Employer. Bumby's own response was consistent with Employer's prior contrac- tual proposal that the bonus/gift grant be a discretionary matter for management, as was Mueller's initial response compatible with both. Moreover, Bumby's additional ad- mission that the Union had not been informed by Em- ployer that Employer was considering a discontinuance of payment of a yearend bonus until November 17 was itself confirmed, and is further consistent with the fact that an actual employer decision on 1982 bonus/gift deci- sion had not earlier been made. Although bonuses were paid in 1979 and 1980, the decline in business did not set in until late 1980. More pointedly, although no bonus 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was paid in 1981, neither a reference to discontinuance, or related "greater dollar value" reference was made in the stated reasons for nonpayment, and the bonus non- payment was itself limited to 1981 . The evidence thus.on the one hand is wholly consistent with the claim that no decision was reached on' bonus payment discontinuance prior to 1982. On the other hand there is no inherent in- consistency in Bumby's assertion that he had continued to discuss the subject with President Mench; and Bumby's testimony thereon was in the end itself neither contradicted nor inconsistent with the claim that no deci- sion on change was earlier made . I cannot on such state of the evidence conclude that Bumby 's testimony of merely ' continuing discussion of prospective policy change was implausible; and I decline on the weight of evidence presented to conclude that it was shown to be false. In passing it is observed that with the determination made that a decision on change was not made prior to November 17, it would appear to follow that the case of Aeronca, supra, becomes inapposite on its facts, though notably its guidelines were met in this case. There re- mains to.consider the General Counsel's related ' conten- tions that Employer had not bargained in good faith, and acted unilaterally because it presented the Union with a, fait accompli. The General Counsel contends that on union inquiry as to bonus payment on November 15, Employer initially responded that there would be further -discussion of the subject, but on! November 17 Respondent then informed the Union that no yearend bonus would be paid . It is the General Counsel's position that hard bargaining by Em- ployer is _ not evidenced herein but rather the Union was effectively faced with a fait accompli , with stated reli- ance on Gas Machinery Co., 221 NLRB 862, 866-867 (1975); Pistoresi & Son, Inc., 203 NLRB 905.(1973); and Woonsocket Spinning Co., 252 NLRB 1170, 1171 (1980). Moreover, when the Union next attempted . to make a counterproposal on December 2 that there be a pro rata bonus (based on hours worked) Respondent promptly re- jected it without any counterproposal . It is thus argued that Employer ' failed on .both November 17 and Decem- ber 2 to explore or to give consideration to the Union's proposal but rather merely repeated its own assertion that bonuses were :within its sole discretion ; that they should beincorporated into the total , package of negotia- tions, and reaffirmed on -December 2 -that , Employer "does ' not intend to distribute [a yearend bonus] in the future as has been done in the -past."-The General Coun- sel submits the same has evidenced an employer intransi- gence, and a failure in its bargaining duty, to i"approach the bargaining table with an, open: mind and purpose to reach agreement . consistent .with the respective rights of the parties." Mature Transport Co. v. NLRB, •198 F.2d 735; 739 (5th Cir. 1952). These claims also will; riot with- stand close scrutiny _ 11 , : • . • .' i; ,. By virtue of the Union's certification following majori- ty representative' designation -by;employees voting in the election held on September 12, 1980 , the.Union's initial contract proposal made to Employer in May 1982 might, as it did, properly propose that the economics of.its pro- posed contract (excluding :insurance) be negotiated on basis of being made retroactive to September 12, 1980. A related distinction is to be immediately observed.howev- er on the circumstances of Employer' s interim nonpay- ment of a yearend bonus in 198l .-Although I have con- cluded and found that the Union' s silence as to that em- ployer action did not constitute union waiver of its right to bargain on the subject of a yearend bonus, I have also observed that the parties have not-joined issue (in com- plaint allegation or contended as litigated herein) on the unlawfulness of Employer's action thereon. More point- edly, the parties do not contest evidentialy the material facts bearing on the Employer's nonpayment of the year- end bonus in 1981 . -In .any event, I have found the facts to be, on the record evidence presented, that Employer made a determination at that time that Employer would not pay a bonus in 1981 (only) for certain stated reasons, inclusive of stated anticipation of a nonprofitable year in- volving an experienced deterioration in business, accom- panied in part by various adverse effects of an ongoing strike. The Union was informed of Employer's action and the reasons for'it, as to which Buinby has now addi- tionally creditedly and persuasively testified, including that in 1981 a nonprofitable year' materialized, and 1982, substantially so.' • Employer was as clearly free to begin to bargain in a manner consistent with the above facts. Thus, after Em- ployer commenced bargaining with the Union, and after it had reviewed the Union's initial proposal for a con- tract, it was free to adopt and present to the Union, and to' do so in complete good faith as part of Employer's initial 'proposal for a complete contract, its own position that payment of a yearend bonus in the future be under terms of the contract a matter for determination by man- agement in its sole discretion: (To subsequently insist on the right to deny the Union'any role in representing em- ployees on the issue of payment of a yearend bonus might well be another matter, cf. Struthers Wells, siipra, 262 NLRB at •1090, and see cases cited there.) Certainly the Union need not agree therewith; and it is clear of record that it did 'not accept Employer's provision as a contract condition either when initially proposed, or at any time thereafter. However, the issue presently joined is the question of opportunity for good-faith bargaining presented the Union, versus fait'accompli bargaining by Employer not on the subject of` an insisted upon 'solely discretionary' grant of 'yearend bonus by Employer, but on the subject of opportunity to bar`gain on payment of a yearend bonus, and specifically 'in 1982 In that regard it. is 'first observed that, apart from' a couple of initial meetings"relating to return of'strikers, the parties had met for negotiations about 30 , times . in 1982. ,Considering that there were 8 to;9 meetings from August through- early November related to rules,' and ex- cluding the time related to the ;hearing' in October, it is reasonably apparent that Employer and the Union had essentially been, regularly ,meeting and negotiating in 1982; ever since. passing 'their initial contract proposals in .May and June, respectively., Indeed, "they had-recently reached preliminary agreements after difficult negotia- tions on work rules, and an agreement for (at least) tem- porary implementation of 'the.,work rules- prior' to_ the ADVERTISERS MFG. CO. Union's broach of the subject of payment of a yearend bonus in 1982 on November 15 While it is clear that Employer had not expressed previously to the Union any intention on its part of discontinuance of payment of a yearend bonus (in 1982 and/or in subsequent years) of the type it had paid in prior years, and that Employer had only proposed in June that its payment of a bonus/- gift be contractually provided for as a matter within management's discretion, the Union was no less aware of the fact that management in 1981 had taken the position that a yearend bonus was not to be paid for certain ex- plicitly stated reasons, namely, because there had been a deterioration in the level of its business starting in 1980, which had continued in 1981, with the additional claim that there were adverse strike effects on its productivity and expenses: The Union' thus had as much reason to consider that both of these circumstances may have potentially contin- ued in effect in 1982 (at least) to some appreciable extent, since the Union had continued its strike through early May, and since the Union became directly aware that there was a downturn in Employer's production, with ostensible layoffs, and short weeks for some working em- ployees. The Union was aware as well in early Decem- ber 1981, because the Employer had then so, informed the Union, that Employer had claimed that it was antici- pating a nonprofitable year in 1981, for the earlier stated reasons. Whether it was in a mutual pragmatic view of all the above conditions, or for other undeclared and in- dividual reasons, the simple but inescapable fact is no less clear, that despite their differences in-their respective be- ginning proposals, and awareness of that background, neither the Union nor Employer had sought to raise the subject of Employer's payment of a yearend 'bonus -in 1982 before the Union did so on November•15. It is clear as well, from confirmed reply of Bumby, that the weight of the evidence warrants the finding that, as of that time, the Employer had not decided what its position was to be on a payment of a bonus in 1982, beyond its 5-month earlier initial proposal that the determination on payment of any yearend bonus be contractually left in its discre- tion. Though Mueller in passing the subject on Novem- ber 15 also promptly commented that Employer felt the payment should be part of a total contract package, Mueller's initial statement thereon also- made clear that Employer would discuss the subject further ' with the Union. I conclude and find that the matter of payment of bonus in 1982 was not decided as of November 15. The case of Aeronca thus appears inapposite. Even assuming that Respondent- immediately told -the Union when next they met in, negotiations on November 17 that Employer had decided it would not pay the year- end bonus (in 1982) as appears 'in Employer's. December 7 letter, and confirmed by Employer's clarifying Decem- ber 8 notice given employees that there would not be a bonus payment in 1982, discussion immediately began. It is moieover clear that, in regard to their discussions on November 17, Wetzel conceded that statements made by Mueller in presentment of- Employer's position were much less intractable than the statement on its face may be viewed as reflecting, e.g., variously. that it would be very difficult to pay a bonus;. that because of the status 123 of the work force, including the circumstances that some people-were on layoff, and others were not on full weeks that they did not want to pay it; that business orders and profits were down, and employees would probably, be better off with the bonus incorporated into the total cost factor of a contract; and that Employer's feelings at that point would be a total incentive to reach quick agree- ment. - While I. have reservations that Wetzel did so in this meeting, rather than in the December 2 meeting, even as- suming that it was ;in the same November 17 meeting that Wetzel had initially presented. a union counterpro- posal that payment-be made to employees pro rata (on basis of time worked) that counterproposal appears in nature as responsive to only one reason -raised by Em- ployer, namely, the asserted difficulties it faced in ad- dressing a distribution; and in any event was clearly not responsive to the claim of a continued business downturn that made the expenditure unwarranted. To be sure in the'December 2 meeting Wetzel related on one occasion that Employer told the Union it felt the yearend bonus could not be paid. If any ambiguity was generated at that point as to claimed inability to pay, it was not pursued by the Union at that time, and was sought to be clarified later by Employer. only when the Union interimly had sought financial' data. Moreover, the ultimate fact herein appears to be one that is clear. It is that the Union held just as firmly to a position calling for payment of a year- end bonus in 1982, with the parties continuing negotia- tions on the subject of future bonus payments, as Em- ployer had expressed its desire not to make (change) payment of a bonus in 1982, with agreement to continue negotiations on future payment, and as well to negotiate on basis of a retroactive bonus payment for 1982 if agreed to by the parties. In passing Pam persuaded that Employer has not in its above bargaining position, or by virtue of having continued to propose its initial contract position, insisted on a contractual agreement that pay- ment of a yearend bonus' be left in its discretion in a manner to exclude any union role in representational function in a vital area. To the contrary, the Union was invited to have continued discussions with Employer. A fair question would appear to be raised herein whether the' Union may require continuance of payment of a yearend bonus in' accordance with past practice by the simple expedient of refusing to agree with Employer on any other basis. Thus, although in the December 2 meeting the Com- pany informed the Union that its present intention was not to -distribute gifts in the future as had been done in the past, nonetheless Employer in the course of that meeting had also stated a continued willingness to dis- cuss a payment of a bonus for 1982 as part of a to-be- negotiated contract. It has appeared to me as the more likely that it was in this December 2 meeting that the Union proposed the pro rata distribution of the bonus be made on the basis of time worked, as the General Coun- sel's brief would seemingly confirm. However, on this record the Union's'only stated position otherwise during the entire negotiation meetings was to demand the bonus be paid in 1982 as' it had been before; and, to otherwise, 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD state that the Union wanted Employer's position on not wanting to pay the bonus to be stated to the Union in writing; and when that .was done, to request that the em- ployees be similarly notified of Employer's action and its stated reasons therefore, which Employer did. The fact is also clear that, when Employer's written position of December 7 was delivered to the Union at the negotiation meeting held on December 8, the Union did not seek to have any further discussion on Employ- er's previously stated,' and now written, position in regard to 'nonpayment of a bonus in 1982. The conclu- sion seems equally inescapable that after the parties" in- depth discussion on December 2, the Union thereafter had felt no need for further exploratory discussions, nor did it exhibit-any desire on its part to take. advantage of the negotiation opportunity afforded it on December 8 to present, seek, or discuss any further counterproposals with Employer concerning the payment of a bonus in 1982. ^ When the Union would itself next broach continued negotiations on the subject on December 14, it was only after a reservation'by the, Union of its own first position that the yearend bonus should be paid employees in 1982 because the payments were "due and owing to employ- ees based on time worked." It was only thereafter that the Union proceeded with a statement of agreement to continue negotiations on other basis as previously re- quested by Employer. - ,. Notably there had been no interim inquiry by the Union for supporting data, on Employer's written ad- vanced 'reason 3, "The level of business in the industry and for the Company has been very poor for an ex- tended, period of time, going back to at least 1980, and the expenditure under that circumstance is not warrant- ed." When the Union did make an initial request for data on December 14 it. was only to essentially request a pro- posal from Employer on (bonus) dollar amounts for a prospective transfer to increase wages and benefits, and for full data on the bonuses theretofore paid employees in. the past 3 years Moreover, without waiting for re- sponse the Union filed the instant charge, pressing, its claim Employer had acted unlawfully 'in unilaterally not paying the 1982, yearend bonus. It was only when the Union's request for Employer's statement on-prospective transfer of funds was subsequently met by Employer's written response for the Union , to address Employer's prior claim of-a deteriorated level of business with Em- ployer's assertion that no ' amount of bonus funds were thus earmarked by,Employer for transfer, that-the=Union' even arguably first sought'any supportingdata in regard to Employer's contention of a poor' level of -business' since the end of 1980. It is my judgment that the.foregoing does' not describe fait accompli bargaining by Employer:' It is rather' my view that, when the Union was presented with Employ- er's position that' a yearend bonus paymeht- in 'I 982i was not warranted in light of a poor level of -business` 'since 1980 (along'with the other stated reasons) the'Union did. not initially seek 'to question Employer's claim, but rather elected to bargain as hard as Employer on the matter, demanding that - payment -of:a• yearend-bonus in 1982' be made nonetheless on the basis that it was an ac-: crued benefit; and if anything, on that account was just as unyielding, if not more so, than Employer who, while proposing no payment be made in 1982 for the stated le- gitimate business reason(s), had exhibited immediate will- ingness to negotiate further for such a payment to be paid retroactively if eventually agreed by the, parties. I have' no doubt that what is depicted by the bargaining herein is that a deadlock in position developed between the parties on an increasingly imminent matter -of a pay- ment of a yearend bonus in 1982, under 1982 circum- stances.. The yearend bonus was not shown to be an accrued, or vesting, wage benefit before period of distribution. However, payment of a yearend bonus was a term and condition of employment of employees employed, at the time of distribution, and it was a component of their wages. As I do not find the conclusion that Employer had engaged in fait accompli bargaining is one warranted on the facts and circumstances of this case, but as there is also no question that Employer eventually acted with- out agreement of the Union in -not making a yearend bonus payment in 1982, there was a resulting unilateral change in wages -and existing terms and conditions of employees. The lawfulness of that change comes down in final analysis to' a question whether under the applica- ble Board precedent governing me there was the re- quired element of an impasse in the parties' negotiations that would free. Employer to act unilaterally 'in that fash- ion. . In general, an impasse is occasioned when neither party to.a prospective collective-bargaining agreement is willing to further accede to the other's position on a mandatory subject of bargaining, or to recede from its own position advanced and held in good faith. The case otherwise appears to present the issue of the scope of the required, impasse, identified, but left unresolved, in Cen- tral, Virginia Electric Corp., 254 NLRB at 424; and see cases-cited there Taft Broadcasting, supra, would also seem to indicate that an-impasse may occur between the parties over one unresolved difference' in position, 163 NLRB at 474. In Winn-Dixie, supra, 243 NLRB at 974- 975,,the, employer had proposed and pressed implementa- tion'of a certain wage increase (without prejudice to fur- ther bargaining on the subject) which offer was rejected by the union with a union counter request for bargaining on -related money matters. It was determined' by the Board' that the employer, had, acted unilaterally in viola- tion of Section ,8(a)(5)_ when it subsequently after meeting, three times with-the Union implemented the ' wage in- crease with the other ,related money matters. still unre- solved. ;(Additionally, present in 'the case were factors in- dicating that the employer's intent was to implement its proposed; wage; increase whether, the union agreed or ob- jected to, it.).1The Board determined that the employer's bargaining ;posture had fallen within " ritual or pro forma approach. to bargaining";- and that it did .not constitute the "kind; of rational, exchange. of- facts and, arguments which increases mutual understanding and then results in agreement." On the issue of the required scope-of. impasse consider- ation it is my view, that an;-impasse 'may, be governed by ADVERTISERS MFG CO 125 a required consideration of either the status of the par- ties' positions on the remaining unresolved items of an entire contract or be controlled by a'readily discerned deadlock of the parties on a single substantial subject, though other items are unresolved. The nature of the re- quired impasse consideration is to be determined by the facts of the parties' bargaining positions when adopted and pursued in good faith to a reasonably discerned deadlock. Here Employer was not initially proposing a wage increase (as in Winn-Dixie), but to' change a term. and condition of employment; for the stated economic reasons. Here the Union did not request bargaining on related matters (as in Winn-Dixie), nor seek to explore adjustments in light of Employer's advanced reasons but essentially matched Employer's expressed position for a change with a demand of its own, that there be no, change. Here (unlike in Winn-Dixie) the Union was not seeking further discussion on payment of a bonus in 1982, and denied it by unilateral action of Employer. To be sure otherwise Employer had presented flexible nego- tiating posture, which the Union ultimately sought to pursue, ' but on the above initial issue it reasonably ap- pears there was nothing more to be said between them. In short,-the essence of the initial dispute, in my view, was not one of an employer not having provided the union adequate time to bargain sufficiently before execut- ing a desired change supported by legitimate business justification, or of the employer not having bargained in good faith thereon. Rather, the problem of this dispute initially was .that the parties, after clearly sufficient op- portunity for discussion of each other's positions, simply did not agree on one eminent and major aspect of their negotiations. It is my view that in the circumstances of this case the Act 'does not require that they do so. If I have any remaining reservation in the matter it is in regard to the statement attributed to Mueller by Wetzel in the` meeting of•November 17, that Employer's position that the yearend bonus be incorporated into the total package might be an' incentive 'for the Union and the Company to reach a quick agreement; but in the meeting' of December 2, recalled'as a statement , made by Mueller that 'if the 'bonuses were-not paid it would be an incen- tive to the Union and employees to reach an agreement, the'latter appearing 'to indicate Employer's' withholding of the benefit was to 'unlawfully enhance its own bar- gaining position. Apart from the 'discrepancy in the above, I have discerned otherwise some confusion by Wetzel in his recount of- the- specific content of these meeting`s Moreover; -other "caveats"- advanced by Em- ployer, on ihe' likelihood of an agreement being reached in 'a first 'contract on a payment of -a. yearend' bonus of the type'heretofore paid, convince me such' was not=the case. - . ' ' - 1, -1 It is concluded' 'and found that the-parties were here deadlocked' and at impasse,' 'after a reasonable opportuni- ty for'full'discussion of their,niiitual'positions, on-the im= mment substantive issue'of payment'of a yearend bonus iii 1982; ands that, accordingly, the Employer did not act unilaterally in derogation of its statutory obligation to bargain in good faith with the Union when it did not pay a yearend bonus in 1982 for earlier stated legitimate busi- ness reasons; ' while offering to continue discussions with the Union thereafter with negotiations continuing on a basis-of.provision id the contract for payment of a year- end bonus, though appearing unlikely, and including a provision in the contract for payment of a yearend bonus of some type for 1982, retroactively, if later agreed on. 5. Respondent's alleged refusal to supply the Union requested information in violation of Section 8(a)(5) and (1) The-complaint in Case 30-CA-7565 alleges that about February 10, 1983, the Union requested Employer to fur- nish the Union the gross sales, total incoming orders, and profits of Employer for the years 1967-1982, that the in- formation requested by the Union was necessary for and relevant to the Union's performance of its function as the exclusive collective-bargaining representative of the unit employees; and that since about February 24, 1983, the Employer has refused to supply that information. - Marshaling the pertinent background, on December 2, 1981, Employer notified Wetzel, inter alia, as the reasons for,recommended nonpayment of yearend bonus in 1981 'that it anticipated fiscal year 1981 would not be profita- ble, that the strike had contributed to a substantial reduc- tion in gross revenues; and that it had experienced addi- tional related expenses and loss of productivity. A year later, during the negotiations on November 17 and De- cember 2, the Employer variously stated that orders were down; profits were down; and the Company was ,not "having best business conditions." On December 7 Employer summarized its position in writing: "The level of business in the,industry and for the Company has been, very poor for an extended period of time, going.back. to at least 1980 and -the expenditure under that circum- stances is not warranted." Wetzel did not immediately seek any supporting data on the Employer's. "level of business" claim. It was only.after Wetzel had requested a proposal from Employer on "the amount of money to be prospectively transferred for "wages and. benefits" ,(as well as bonus data for 3, years) and had received the De-, cember IT reply of Mueller that in light of its "level of business" position, the Company had not earmarked any specific dollar amount , for "wages and benefits" for the bargaining employees, that Wetzel on December 20 then requested- in regard ,to the, Company's "level of business" position that the . Union be furnished "with the dollar amounts of business done by ,the Company" for the last 15,years (covering roughly one-half of the, period over which bonuses had theretofore been paid), and. records of the bonuses,paid employees over the same period, ad- vising. that. a verified statement would be presently ac- ceptable. On December 29, Mueller responded that Em- ployer,'s""level of business') position .was n-ot a claim of inability_to pay, and,that- the Company was, under no ob- ligation- to -open its financial ,records and divulge, confi- dential "information, of the. type, requested. Nonetheless the Company- offered to; discuss the; matter for the pur- pose of 'supplying, the, Union' with data on its "level of business" -factor; and it asserted that "dollar amount of business" was not the most relevant factor On' January 7, Wetzel wrote ' Employer and, for the second time, requested the same data, however telling 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company that the base of its information request was not what Employer had described;: and asserting that the union, position was rather the Company had'outlined the recent reductions in orders and business levels for not wanting to follow past practice in paying a bonus and it wanted the information it requested to verify the Compa- ny's position. - - , On January 10, 1983, Mueller accused Wetzel of effec- tively shifting positions from demanding specific infor- mation of dollar amounts of business to verifying the Company's • position. In passing, I discern no such claimed shift of position. What I also discern as perfectly clear is that Employer again responded in relation to its own position, while ignoring Wetzel's admonition that its request for information was proceeding from a' different base. It is clear enough to me also from Wetzel's specific request that the Union's request for a 15-year data base was for the intended 'purpose of its verifying Employer's nongrant of bonus for an asserted business level in recent years, in the potentially illuminating light of Employer's past practice in granting specific amounts of bonuses in relation to specific amount of fluctuating annual gross revenues, as Wetzel has essentially confirmed -in credited testimony. Employer's request for an additional explana- tion of why the additional information was necessary is in my view without merit; and the Union was entitled to -choose to ignore it in turning the matter over to counsel, as Wetzel did, particularly with the.January 17 notice to Employer that it had done so. - On January 21, Mueller informed the- Union it would supply verification data for its "level of business factor" without the Union, the Union having indicated unwill- ingness to participate. On- February 8 Bumby supplied data in the form of percentage comparisons in sales, prof- its, and incoming orders for the years 1979-1982 on base average of representative years 1977-1979. As earlier found, the data submitted does support _ Employer's "level of business" assertion as to Employer's recent business experience. But it is just as clear that it was not responsive to the Union's prior and repeated requests For the third time Wetzel stated the Union's request was for dollar amounts of business from 1967, and he pointed out that base averages were not-what the Union had -requested. -However, this time Wetzel asserted the Union would accept (tracking- Employer' s last response) gross sales, total incoming orders, and profits, for the same period, but advising it would evaluate the percent of increase or decrease in business . By letter'of February 24 after repeating it had made no claim of poverty Bumby stated Employer's (further) position to be that Employer did not believe it was legally obligated to share the Company's confidential records regarding sales and profits and incoming orders; that Employer believed what it had- previously supplied was ample and sufficient for the Union's pruposes; and that the Union's request was denied unless the Union substantiated why this con- fidential information is necessary to continue with the negotiation process. On February 28 Wetzel repeated all the Union's requests stand, and on March 28 Mueller re- ported no change -by Employer. On cross-examination Bumby admitted that the Union had never asked for spe- cific bids, or specific orders. Analysis It is a violation of Section 8(a)(5) for an employer not to timely furnish information that is necessary for the proper discharge by the union of its duties as bargaining agent of employees, ,NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); NLRB v. Whitin Machine Works, 217 F.2d 593, (4th Cir. 1954); and it has as long been established that without the information relevant to the processing ,of the parties' bargaining positions the union is unable to perform its duties properly as bargaining agent , Alumi- num Ore Co. v. NLRB, 131 F.2d 485 . (7th Cir. 1942); Taylor Forge & Pipe Works v. NLRB, 234 F.2d 227 (7th Cir 1956). In general,- the requested information "must be disclosed unless it plainly appears irrelevant," NLRB v. Yawman & Erbe Mfg. Co., 187 F.2d 947 (2d Cir. 1951). "Any less lenient rule would greatly hamper the bargain- ing process, for it is virtually impossible to tell in ad- vance whether the requested data will be relevant Id. at 949. An employer's failure to timely supply - the information is as much a violation of its duty to bar- gain as if it had failed to meet and confer with the union in good faith, Curtiss-Wright Corp. v. NLRB, 347 F.2d 61 (3d Cir. 1965). Respondent's good-faith belief that it is not obligated to supply the information is immaterial, NLRB v. Truitt Mfg. Co., supra, 351 U.S. at 150; and its defending claims of confidentiality based . on consider- ation of its competitors are on the facts presented herein unpersuasive , Aluminum Ore, supra, Westinghouse Electric Corp., 239 NLRB _106, 139 (1978). Relatedly see Cowles Communications, 172 NLRB 1909, 1910 (1968), on right to , information on bonus formula. It is clear that detailed data on bonuses must be disclosed, cf. Boston Herald- Traveler Corp. v. NLRB, 223 F.2d 58 ( 1st Cir. 1955); and it is clear as well in that regard that the Union 's request for data over a 15- 16 year . period reasonably related to Employer's recent departure from a 30-year history of paying a yearend bonus . Nor was burdensomeness in supplying such data made the issue . See J. I. Case Co. V. NLRB, 253 F 2d 149 (7th Cir 1958). I conclude and find the Union was clearly entitled to production of the bonus data as originally requested on December 20, and as essentially renewed on February 28. The only remain- ing question is whether it was entitled to related financial information , in the form of sales, incoming orders, and profits, as requested on February 10 and denied on Feb- ruary 24, under the circumstances of this case. After first preserving the position that the bonus for 1982 should be paid as in-the past because it had accrued to the employees, 'the open- bonus , questions that the Union then had for immediate addressment as it thereaf- ter sought to continue its negotiations on the basis sug- gested by Employer -were whether in the face of the de- teriorated "level of business" claim of Employer the-first contract to' be - negotiated -by -them was nonetheless i to have a provision for payment of a. yearend bonus, with Employer having indicated that to be' unlikely in •a, first -contract for reason earlier, stated, • and/or , have a provi- sion for' a payment of a yearend bonus for 1982, of some type, retroactively; and the related union position on general issues of a bonus cost factor was to be consid- ered part of'a total contract' package. However , Wetzel ADVERTISERS MFG CO.' has testified, and I find credibly so, that he had sought the information that. he later requested from the Employ- er essentially for two -reasons: first, to determine whether Employer's stated position on "level of business" was itself factual; and second, to determine (verify) Employ- er's present position of not wanting to pay a bonus be- cause of Employer's "level of business" since 1980, with what Employer had done in paying bonuses in the past when Employer's business had fluctuated in the past, as Wetzel testified without contradiction that Employer's business was known to have done. Respondent essentially contends, insofar as remaining pertinent, that the Union's February 10.request for cer- tain information must be reviewed in context; and that when that is done, Respondent's conduct is proven to be- in compliance with its collective-bargaining obligation. Respondent's arguments are: that it was under no legal obligation to open its financial records and divulge confi- dential information of the type requested by the Union because its "level of business" factor was not a plea of financial inability to pay, but a stated reason why it viewed it to be inappropriate to make the expenditure at that time; that the Union never questioned whether Re- spondent was claiming a financial inability, and the evi- deuce establishes that'it did not; and finally that, even if it were reasonably 'to be concluded that Employer had made a claim of financial inability, it satisfied any re- quired duty in that regard to support that claim when, on its own, after having first unsuccessfully invited the Union to discuss the matter, it supplied financial data sat- isfactorily supporting its level of business claim, though ,not in the exact form as initially requested by the Union. As noted, a union has a presumptive right to informa- tion on wage rates and costs of fringe benefits. But a dif- ferent rule applies to an employer's required divulgement of information regarding its profits, or other aspects of its financial condition. There, the union must show a spe- cific need. The employer may provide the justification for a requirement of its production of its profit and finan- cial data, as where it has raised a claim of an inability to pay, Whitin Machine Works, 108 NLRB 1537 (1954), enfd. 217 F.2d 593, 594 (4th Cir. 1954), cert. denied 349 U.S. 905 (1955). Honest claims presented by one party may nonetheless be required to be substantiated by the other party, NLRB' v. Truitt Mfg. Co., 351 U.S. 149 (1956). Within Truitt guidance, the Board early thereafter held that in regard to a-union's request for production and sales figures in order to determine what size wage demands the union should make on the employer in rela- tion to the employer's ability to pay, that the employer's ability to pay must be brought into issue before a refusal to furnish information relating thereto can be found to be violative of the Act, Pine Industrial Relations Committee, • 118 NLRB 1055, 1061 (1957), affd. in relevant part sub .nom.- Woodworkers v. NLRB, 263 -F.2d• 483 (D.C. Cir. 1959). - • - The General . Counsel, however, has advanced various Board and court related , holdings to, the effect that use-of "magic" words such as •"can't afford" are not required for an inability-to-pay claim to be established, and that ,other statements by an employer may reveal a claim in effect has been advanced of an inability to pay, with 127 stated reliance on a more recent Board holding in Hiney Printing Co., 262 NLRB 157, 162 (1982), inclusive of sev- eral of the Board and court cases cited there, and an ear- lier Board holding of Stockton Growers, 165 NLRB 223 (1967), each thus triggering an obligation on the part of the employer -to disclose relevant financial information, on union request. The -General Counsel's essential argu- ment herein is that- Employer's various assertions on "level of business" being down as a reason for its not paying a yearend bonus has effectively raised a claim of inability to pay, much as did the various statements made by the respective employers in the above cases, e.g., that the financial condition of the company was not up to standard, Monarch Tool Co., 227 NLRB 1265, 1266-67 (1977); that to remain -competitive, an employer was unable to pay higher wages, or that the employer was in "no mood" to pay higher wages because of decreased sales and profits, Stanley Building Specialities- Co., 166 NLRB 984, 986 (1967), enfd. 401 F.2d 434 (D.C. Cir 1968); cert. denied sub nom. Stanley Artex 'Windows v. NLRB, 394 U.S. 946 (1969); and Stockton Growers, supra, 165 NLRB at 224-225. There is considerable force of persuasion in the Gener- al Counsel's above argument that would have Employ- er's various statements on its "level of business" deter- mined as similarly warranting the conclusion to be made here that a claim of inability- to pay a yearend bonus was in effect initially' made by Employer. Even if Respond- ent's position of being willing to continue to negotiate for a provision in a first contract for a yearend bonus, though appearing unlikely for that earlier stated reason, was stated during negotiation meetings, as well as of being willing to continue to negotiate for yearend bonus payment of some type to be paid for 1982 retroactively, if eventually agreed upon, that circumstance does not persuade to the contrary. Neither does Bumby's testimo- ny that Employer possibly could have paid a bonus of prior type persuade to the contrary. An inability-to-pay claim does not require it to be presented as an alternative to an act of insolvency; nor is employer intransigence in related bargaining a required element, see N. Y. Printing Pressmen (Milbin Printing), 538 F.2d 496 (2d Cir. 1976). Neither does Employer's disclaimer 'of December 29 con- vince inasmuch as it was only first raised after the Union had sought the supporting bonus- and dollar amount of business data for the 15-year period when Employer had again • responded to the Union's followup request for a proposal on transfer of funds to be available for wages and benefits, in short, a request for an economic proposal thereon, that Employer had set no sum aside for that purpose with repeated reference to its "level of business" factor. Accordingly, it is concluded and found that the evidence predominates that Employer by its various ear- lier and continued, "level of business" assertions for non- payment of a bonus up to that point had in effect raised a claim -of inability to pay on the basis'of the Board and court authorities first above cited. Employer's alternative argument, in regard to a deter- mined claim of inability to pay bonus in 1982 based on its "level of business" factor, is that it did thereafter supply the Union with adequate information to support its claim 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on "level of business." Thus, after inviting union discus- sion on the matter to no avail, Employer then supplied additional financial data on its own, which showed, on the base of the three immediately prior representative years of 1977-1979, that sales were down in 1981 and 1982; as were incoming orders, and the latter substantial- ly so (44 percent) in 1982; and that profits started down in 1980, with Employer suffering actual loss in 1981, and with Employer's profits for 1982 estimated at 94 percent down from that 3-year base average of profit. No evi- dence was offered by the General Counsel that the years selected by Employer as base were not representative; or, that there was some other form of financial distortion in the data presentment. To the contrary, Bumby has tes- tified uncontestedly that he compiled the data in good faith, and that the data is accurate. To be sure, the data supplied by Employer was in a form other than that (inclusively) requested by the Union, which was then for "dollar amounts of business" and "records showing bonuses paid" over the past 15- year period with 1982 to be similarly provided when available. Nonetheless, the financial data supplied, under the above circumstances, was adequate for the Union to understand and to intelligently evaluate Employer's base for the claim as to its recent level of business as having "been very poor for an extended period of time, going back to at least 1980." See and compare Furniture Work- ers v. NLRB, 388 F.2d 880 (4th Cir. 1967). However, I also conclude and find that it was responsive to the Union's request only to the extent that request was inclu- sive of the time frame that Employer alone viewed as material, viz, to support Employer's claim. It did not re- spond to the Union's broader inquiry, and request, fore- told as proceeding from different base in bargaining, of which the Employer was, or should have been, well aware from the Union's repeated requests and admoni- tions. Nor did Employer's submitted data make any effort otherwise to meet the Union's request for the period data relevant to the Union's desired broader eval- uation of that 1982 circumstances as not warranting bonus expenditure, when the same is considered in con- text of being a departure from a 30-year prior practice of Employer having paid a bonus, as the Union viewed it; and where, particularly insofar as this record shows, Em- ployer's business has apparently fluctuated in the past. Employer's financial data offered thus did not extend to support, "the expenditure under that circumstance is not warranted," to that degree. Nor did the Union's request under those circumstances rest exclusively on an inabil- ity-to-pay claim of Employer, but additionally on an honesty-of-claim inquiry. In my view the latter melded a need to know periodic wage-related data apart from con- sideration of Employer's claim of an inability to pay and resting the more so on a proposal on its part to depart from an established 30-year practice. The remaining question is whether the Union so vacillated in its request for data in nature or degree that would support Employ- er's warrant to disregard the Union's request. Annual dollar amounts of business in relation to bonus amounts granted respectively was initially sought, and not without foundation in Employer's prior references to gross revenues and/or business being down, along with its references to "level of business" factor in more recent years. In response to Employer's submission of the per- centage data in categories of sales, incoming orders, and profits, and with an earlier employer assertion that "dollar amounts of business" was not the most relevant factor, the Union on February 10, 1983, reasonably re- newed its request for its period data in the above em- ployer-utilized categories as follows, for gross sales, total incoming orders, and profits. With Employer's subse- quent introduction of sales, incoming orders, and profit figures, albeit in percentages, I cannot conclude that the Union's subsequent request for gross sales, total incoming orders, and profits was misplaced or confusing; nor con- clude in connection therewith that the Union's request for bonus data and information in these categories for a 15-year period was thereby rendered plainly irrelevant, or had varied to the point Employer might warrantedly ignore the Union's request. To the contrary, bonus amounts as a percentage of dollar amounts of business, or of either gross sales or total incoming orders over the annual periods sought may be quite revealing for union purposes in understanding the import and nature of Em- ployer's past practice in paying a yearend bonus for 30 years, on other occasions when business fluctuated, and thus to understand the nature of its proposed departure from that practice on a recent business level factor. Again, in this regard it is to be observed that burden- someness in supplying such data over a 15-year period was never made the issue. See J. I. Case Co. v. NLRB, 253 F.2d 149 (7th Cir. 1958). It is concluded and found that the amounts of bonuses granted annually over a 15-year period were not shown plainly irrelevant where Employer was presenting a present intent to depart from a practice of a bonus paid previously over a twice as large (30-year) period. Union understanding of the actual nature of Employer's pro- posed departure from past practice in that manner was a reasonable requirement for the Union to fulfill its bar- gaining function on behalf of employees. Moreover, I am further persuaded in the end that, in the circumstances of an absence of a bonus formula, the Union has also shown an additional reason for a need to ascertain the annual bonus amounts granted in relationship to Respondent's business, whether as originally sought in relationship to annual dollar amounts of the business, or as subsequently sought in terms of annual gross sales and total incoming orders, Frontier Homes Corp., 153 NLRB 1070, 1085-86 (1965), enfd. 371 F.2d 974 (8th Cir. 1967); Ingalls Ship- building Corp., 143 NLRB 712, 717 (1963). Without that relationship, bonus amounts in prior practice would be meaningless for comparison with the issue of Employer's stated present loss of business urged as a reason for pro- posed departure from its practice. I am not persuaded, however, that the Union has shown a present need to know Employer's profits over the same period, id. at 718; Furniture Workers v. NLRB, 388 F.2d 880 (4th Cir. 1967) It seems to me the latter information is addressed to how much Employer had previously paid in bonus in terms of ability to pay in those years, which is not shown material, particularly with the information sup- plied by Employer already on its level of business factor ADVERTISERS MFG CO. - 129 since 1980, and comprehensive bonus details for the last 3 years given (1978-1980), including annual profit changes in percentage derivative of representative years base when bonus was last previously paid. As to Employer's final assertion in regard to a present intent not to have a bonus payment in the future of the type it had in,the past, it seems to me that without Em- ployer's production of the information that was other- wise being sought by the Union, the Union would have no way of knowing whether Employer's expressed rea- sons for an intended departure from its former bonus payment practice suffered from some other prior and un- revealed practice deficiency, that would only become ap- parent with the Union's own review and analysis of Em- ployer's prior payments of bonus as, e.g., viewed over a period substantial enough to reasonably reflect a period of. business fluctuation, and particularly the relationship thereto, if any, of the amounts of bonus which were ac- tually continued to be paid in those periods despite downward fluctuation. Only in, that manner could the Union be assured that it had sufficiently verified and un- derstood the nature of the reasons for Employer's present wish to depart form a 30-year practice of paying a yearend bonus.. More significantly, only thereafter could the Union itself intelligently represent unit employ- ees and proceed to formulate what positions (on their behalf) should be taken by it in the negotiations with Employer on such a substantial matter of interest to em- ployees as the continuance of a provision for payment of the yearend bonus as heretofore paid in the past. Only ascertainment of the base information that was required for that purpose, and for the bargaining positions to be based thereon, would enable negotiations to proceed with a good-faith exchange of views looking to a first agreement being negotiated on the still open questions, in otherwise indicated difficult times, and at a time when not infrequently the initial bargaining relationship of the parties is one of as yet undeveloped trust; and mutual un- derstanding of each other's positions and each other's committal to the bargaining process as yet unconfirmed. Stated another way, it is my view that an employer pro- posing to eliminate a 30-year practice entirely, as op- posed to urging forgoing of it for a year, on basis of a ,recent business fluctuation, seriously obstructs the begin- ning collective-bargaining process when simultaneously it denies a - union information that would provide the union a reasonable overview, or insight of the-real nature of employer's prior practice in past years, though it has provided the union adequate data as to its current level of business. - Accordingly, it is concluded and found that since Feb- ruary 24, 1983, Respondent has unlawfully- refused to provide the Union with certain required data on request that would reveal the nature of Employer's past prac- tices in paying a yearend bonus in fluctuating business periods, -namely, Employer's gross sales, total--incoming orders, and bonus amount granted during the - period 1967-1982, and that-in doing so Respondent has thereby violated Section 8(a)(5) and (1). It is however my further conclusion that the same has neither effected, or super- imposed, a violation -of Section 8(a)(5) in Employer's nonpayment of a yearend bonus in 1982; and that the ap- propriate remedy for the violation found herein is to order Employer to cease and desist from such conduct in the future, to affirmatively supply the required data now; and to order it to hereafter bargain thereon in good faith as has been otherwise essentially conceded by Employer in its brief to be warranted on such an ultimate finding. 6. Respondent's alleged discriminatory issuance of a warning to Donald Hahn The complaint in Case 30-CA-7565 also alleges that on February 18 Respondent discriminatorily issued a warning to its employee Donald Hahn, thereby discour- aging membership in a labor organization, in violation of Section 8(a)(3) and (1) of the Act. Donald Hahn has-been employed by Employer for 10 years. Hahn is currently employed as a warehouse re- ceiving, clerk. Evan Cauley has also been employed by Employer for about 10 years; and for the last 5-6 years was employed in the cutting department. Jerry Chase and Harold Jackson were supervisors in the cutting room; and Chase was also Hahn's supervisor. James Kumbler has been employed for 3 years as a janitor, and his job takes him through the plant. Don Bebow is the plant, superintendent; and Jill Chatterson has been em- ployed by Employer as personnel director since' June 1980. Hahn was active in - the initial organization of the Union. He has served as the Union's chief steward since October 1981, and is on the Union's bargaining commit- tee. He has sat in on objection meetings that are part of the procedure provided by the "Work Rules and Objec- tion" agreements. He regularly collects union dues, and he has also identified himself as the same Hahn referred- to in Judge Scully's decision. Cauley also attended the initial organizational meetings of the Union. She served as the Union's observer at the election. Cauley was also elected a steward and designated to serve on the bargain- ing committee. * Cauley was a witness in a prior proceed- ing. When the strike began, Cauley engaged in the initial strike activity; and she did some picket line duty. How- ever, after about a week, Cauley returned to work with Employer, and she has worked for Employer ever since. Cauley testified generally that from the day the strik- ing employees came back to work, there has been con- stant name calling, intimidation, and harassment, basical- ly from all the stewards Cauley testified that she person- ally has been called a scab, traitor, witch, and whore, with, the name calling frequently coupled with four- letter-word adjectives; and with the statements made to her sometimes shouted, sometimes quietly said, but never with supervisors present; and not made directly to her face, but rather as she would be passing a work station, or said behind her back, though she would recognize the voices. From time to time, Cauley related some of these incidents to her supervisor. Chatterson confirmed that in the later summer, -and during the fall she had received three to four reports from either Bebow or Chase that Cauley was being called a scab and/or had the word scab written on her timecard, and also that snide remarks were being made • to Cauley while no supervisor was present, though Chatterson did not recall an earlier 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD report of profanity in connection therewith. According to Chatterson, management took the corrective action that they could at the time in the form of informing the supervisors at a regular supervisors' meeting to make sure they were aware of the situation; and that when Cauley was in their area, to watch for it and ensure that no one made snide remarks to Cauley, or picked on her. I credit Cauley generally, and it is concluded and found that Cauley, on several such occasions in the period May 1982 to January 1983, was harassed in the workplace in the above nonconfrontal manner by certain of the return- ing strikers; and that she reported some of the incidents, as to which management took action deemed feasible under the reported circumstances. Cauley also testified that she had been specifically called "Rag" every now and then by Bonnie Hintz, a steward, and by employee Toni Peron, both of whom work together. Cauley was not definitive on dates or chronology of these events. However Hahn testified that when passing through he had heard Hintz on one occa- sion in the fall of 1982 call to "Yvonne Cally [sic], `there goes the rag."' Whether the same, as appears far more likely of record, was but phonetic record reference to the same Evan Cauley, or to another employee, I am in any event persuaded by Cauley's uncontradicted and credited testimony that Hintz and Peroni had referred to Cauley in that fashion in the past, though infrequently; and with the last such occasion reported to her supervi- sor, but not to Chatterson, whose denial in that regard I also credit. Cauley could not place the time of the cen- tral incident with Hahn, to be discussed infra. At first Cauley indefinitely placed the last such inci- dent, with Hintz and Peroni, as being either a week before or a week after the Hahn incident. When it was brought to her attention that holidays were immediately before the Hahn incident, Cauley then thought it must have been a week later. However, other evidence con- vinces me the last Hintz-Peroni incident more likely had occurred before the Hahn incident. Thus, Cauley relates that she reported that (last) Hintz-Peroni incident to her supervisor Chase and to Foreman Jakowski, both being supervisors in the cutting room. Cauley also testified that she also asked Chase if there was going to be anything done about the name calling and the harassment. Chase said yes and asked who specifically was involved. Cauley named (only) Hintz and Peroni. Equally significantly, Cauley recalled that Chase had asked, "Well, has it been going on long?" and Cauley replied, "Well, there's been other names, too, but it is just getting a little bit too much." The recalled question of Chase as to whether it had been going on long, and the limited prominent refer- ence to Hintz and Peroni convince me the last incident with Hintz and Peroni more probably than not occurred before the Hahn incident. Cauley recalled that Chase said he would look into it. Cauley did not know if Chase spoke to Hintz and Peroni, or if they were warned, as Chase did not report back to her on it. Neither Chase nor Jakowski testified in this proceeding. However, the record establishes that neither Hintz nor Peroni were for- mally warned. In passing I credit Chatterson's recollec- tion that there was another reported incident as to Cauley after the Hahn incident, viz, that the word "scab" was written on Cauley's timecard. Chatterson also testified that posted at time of the strikers' return was a Bumby notice to all employees. Essentially the notice referenced that there were differently held opin- ions about the strike; that all would be best served to keep their opinions to themselves; and that the Company would not tolerate conduct on the job that interfered with production. Chatterson confirmed on cross-exami- nation, however, that Hahn was not disciplined for a vio- lation of this rule. After the strike ended and negotiations began, the par- ties subsequently negotiated certain "Work Rules," which were put into effect on November 15. Work rule B-7 provides, "Use of profane language is prohibited." Work rule C-11 provides, "Sexual and/or racial harass- ment of other employees is prohibited." Each employee was given a copy of the work rules, Hahn included. On January 5, 1983, Hahn received a confirmed verbal warning for a violation of work rule B-7, and (initially) a written warning for a violation of work rule C- 11. The written disciplinary action report of January 5, 1983, also recited, inter alia, "Your conduct and remarks directed toward Evan Cauley this morning in the vicinity of the warehouse time clock are unacceptable and violations of the above cited work rules." 7. The January 5, 1983 incident Employees generally work 7 a.m. to 3:30 p.m. Hahn testified that it was about 4 to 5 minutes before 7 a.m. on January 5, 1983, that he had a conversation with Kum- bier by the punch clock. According to Hahn, when the conversation began, Cauley was not present. Hahn's ver- sion is that, as Kumbier punched the timeclock, Kumbier said to Hahn, "I see your wife or your mother isn't here yet." Kumbier was carrying a lunch bag and as he put it on the coat rack Hahn said, "No, is that your breakfast, dinner or supper?" Kumbier walked away; and as Cauley, who had arrived in the interim, punched in, and walked off behind Kumbier. Hahn then yelled out, "Es- pecially at rag time"; and Kumbier said, "Yeh," and walked away. Hahn testified that Cauley was not men- tioned by name, but acknowledges she was in earshot. Called as a witness by Respondent, Cauley's version was that she was walking from the cafeteria to the time- clock, and she saw Hahn and Kumbier standing together. She punched in, and after she had walked off and was halfway to the printing room door with Kumbier in front of her and Hahn behind, Hahn said, "Hey Kumbie, here comes your lunch or your supper, or a snack." Kumbier replied, "No way Ronnie." Hahn then said, "Yeh. Your lunch. Especially if she's on the rag." Kumbier replied again, "No way"; and Kumbier walked into the printing room. Cauley continued through the warehouse to her work station in the cutting room . On cross-examination Cauley acknowledged that no name was mentioned, nor had Hahn pointed at her. Nonetheless her opinion was that Hahn's remarks were directed at her because there was no one else around. Called as a witness by the General Counsel, Kumbier relates that when he walked into the factory he noticed Cauley's punch card was still in the "out" section of the ADVERTISERS MFG. CO punch clock. Kumbier then said to Hahn, "Ron, I see your wife or your mother isn't here yet." According to Kumbier he then punched in his card, put it in the in- slot, placed his jacket and lunch on the rack, started walking away, and noticed Cauley was there. Kumbier confirms Cauley was present when Hahn next spoke, re- calling: "Then Ron said to me, `Is that your breakfast, dinner or supper?' and I didn't say nothing, and I kept walking, and then he said, `Especially at rag time,' and I said, `Ugh,' or something like that." About 7.05 a.m. when Supervisor Chase came into the cutting room, Cauley immediately reported the earlier Hahn incident to Chase. Though she did not tell Chase specifically what had been said to her, Cauley com- plained to Chase that the harassment and the intimidation at work had gotten a little bit out of hand; that it was on the verge of what she called sexual harassment; and that she didn't think any employee should have to put up with it Cauley recalled initially that Chase said, "I agree with you and I'll see what I can do"; and later, that Chase had said he would take care of it. However, Cauley also testified she wasn't informed of any discipli- nary warnings being given to Hahn, until 3 weeks later. As noted, Chase did not testify. However, Kumbier testified that, when he came into the cutting room, Chase asked Kumbier what was said to Evan Cauley. (According to Kumbier, Chase was kind of laughing, smiling, and it was not like he was trying to get information.) Kumbier replied that Ron had asked if that was my breakfast, dinner or supper, and said "especially at rag time." Chase replied, "Oh, that's terrible." Chase laughed it off and told Kumbier that Cauley had complained. About 9 a.m. that same day, Plant Manager Bebow sent a super- visor to bring Kumbier to the coat room where Bebow had intended to request Kumbier to do some work (clean up leaves) which Kumbier had already done In the con- versation Bebow said, "Well, I hear you had a little con- versation with Evan Cauley this morning." Kumbier re- plied, "I didn't have a conversation with her." Bebow then said, "Well, do you know who did?" Kumbier re- plied, "Yes." Bebow asked, "Well, how many people were there?" Kumbier said, "Three." Bebow then asked if Kumbier would give him the names; Kumbier replied no. Kumbier received no disciplinary action. Hahn relates that about 10:30 a.m. Supervisor Chase approached Hahn, handing him a paper, and saying, "You're not going to like this, read it." Hahn did and then asked, "What did I say?" Chase answered the Com- pany was not going to put up with that kind of language. Hahn relates there was no investigatory meeting with him; and that usually there is a meeting before and after discipline is issued. Hahn filed an objection on January 6, 1983, asserting: Work Rules B-7 and C-11 have not been violated if two people are having a conversation and someone walks by and assumes they're talking about her- she's the one with the problem. Nothing was direct- ed toward Evan Cauley like she assumes there was. Hahn also has testified that four-letter words are heard daily in the plant, said mostly by the men, though 131 women are in the department, and supervisors are present. Hahn also testified that he goes through the plant every day and hears similar expressions, e.g , rag- ging it, get off the rag, and rag time. Finally Hahn, through whom all disciplinary warnings go, asserted no other employee had received any written warning or confirmed verbal warning for use of profane language. Kumbier has also confirmed that he has heard four-letter words used every day in the plant, e g., in the press room where printers swear at the presses, and elsewhere, e.g., cutting room Kumbier also confirmed that, every once in a while, he has heard "get off the rag" said, e g., when someone is in a bad mood As earlier noted, Chatterson recalled another reported incident on Cauley either the day after January 5 Hahn incident, or the day after meeting with the Union about Hahn (presumably January 12). The report was that someone had written the word "scab" on Cauley's time- card. The corrective action taken at that time was only to issue a new card. A meeting on Hahn's objection scheduled for January 6, 1983, was rescheduled. Apparently there was some discussion of the incident by the Union and Employer on January 11. In any event, on January 18, Wetzel summa- rized in a letter several points as discussed at a January 11 protest meeting on Hahn's discipline, that was further postponed at Employer's request for lateness of hour. Wetzel argued that Cauley should be present to state the claim of sexual harassment by Hahn. Reportedly, Chat- terson replied she would ask Cauley to do so, but not re- quire it. The Union's then-stated position was that if the Company could not present an accuser, the discipline was null and void and had to be withdrawn. Wetzel con- tended relatedly that in order to make the work rules work, the Company had to substantiate its case with facts. The parties met next on this matter on February 8. Kumbier has confirmed he repeated the same account at that meeting as he did at hearing. On February 10 Mueller responded to a union request for an interpreta- tion of the "sexual and/or racial harassment" rules, and stated, ". . . the Company considers the Work Rule to cover conduct and/or remarks of either a sexual and/or racial nature that is intimidating, hostile or offensive to others and/or which creates an intimidating, hostile or offensive work environment." On February 14, 1983, Wetzel wrote Chatterson, inter alia, "The Union also is dust now being made aware of the Company's interpretation of sexual harassment that is tailor-made to protect a favored management unit em- ployee against the Union's chief steward." On the same day Wetzel wrote Chatterson requesting additional time- card punch-in information and suggesting still another (named) employee who possibly could shed some light on the matter. On February 18 Chatterson wrote Wetzel in reply: (a) "Ms. Cauley is treated in all facets of her employment relationship with the Company as all other employees are"; and (b) the Company would fulfill its obligation under law; and that it intended to conform with an earlier (October) posting (in regard to inter aha sexual harassment in the workplace). By letter of same 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date, Chatterson replied supplying the requested punch- in data; and she informed the Union that the additionally named employee said he had heard nothing. Chatterson then said: The Company believes that it is best to bring the matter to a close at this time. It is significant that Jim Kumbier supports the conversations he had with Jerry Chase and Dan Bebow as related by them, and the abusive language that was used toward or about Evan Cauley in her presence. Al- though there is persuasive evidence that the sexual harassment rule was violated, the Company has de- cided to rescind the discipline on that point. The Company concludes that the circumstances establish that profane or abusive language was directed toward Ms. Cauley by Mr. Hahn and therefore a verbal warning is warranted and given under work Rule B-7. By letter of February 22, 1983, Wetzel related that he was happy to say they were making progress . But then Wetzel contended that his notes reflect that Kumbier did not report to Chase or Bebow anything said by Hahn was profane or abusive. Wetzel suggested it was an in- stance of normal shop talk, not profane or abusive lan- guage to any one person. Wetzel also argued that the statement of Kumbier was obtained by Employer through an entrapment. Finally, the Union suggested that the discipline be removed from Hahn's record, and that a notice be posted to employees about use of words such as "Rag time, Get off the rag, ragging it" and other such phrases management found offensive and that the Union was willing to work with management in developing, posting, and policing it. By separate letter Wetzel re- quested additional information on the earlier October in- cident and posting thereon. By letter of February 28, Chatterson fully responded to the latter, providing the information requested. On March 4, 1983, Chatterson re- plied: that the conclusion on whether Hahn's statements were profane or abusive was not up to Kumbier, but the Company, and the Company had concluded they were; that it was not just shop talk, but profane and abusive language, directed at Cauley; that Chase and Bebow did not entrap Kumbier but were investigating a complaint; and that a further posting (on certain specific words) was unwise and unnecessary as the work rule needed some generality in application. Chatterson also reconfirmed the Company's position, first stated on February 18, that Hahn had received a confirmed verbal warning under work rule B-7 By letter of March 8, Wetzel urged that management was only using circumstancial evidence to convict Hahn and stated, "Even another employee could not substanti- ate Ms. Cauley's statements or evidence. Therefore the Union continues its position that Ron Hahn has been un- fairly warned and treated." Chatterson's response of March 15, 1983, to the latter was that "Kumbier cor- roborates Evan Cauley's recollections and that Ronald Hahn admits the statements he made. The fact that 'an- other employee could not substantiate Ms. Cauley's state- ments or evidence' does not mean that it did not happen" Wetzel raised for consideration on March 29, 1981, that the Employer had issued the discipline to Ron Hahn without meeting to hear his side of the story. Chatter- son's reply of April 4, 1983, was that not all misconduct warranting discipline will require obtaining the employ- ee's "side of the story." Chatterson explained that in Hahn's case Cauley's report was on investigation, con- firmed by Kumbier, so it was unnecessary to meet with Hahn. Chatterson also then related, "Assuming a meeting had been help, and Mr. Hahn had admitted to the re- marks, the discipline would have been the same. Had he denied it, his denial would have been rejected in view of reports from Cauley and Kumbier. Therefore a meeting was unnecessary, as it would not have changed the out- come." Apart from Hahn's disciplinary warning, the Employer has also presented in evidence all 10 prior disciplinary warnings it has issued to 9 employees since November 15, and all 4 objections filed by employees. Employer notes that only in Hahn's case was there an adjustment after objection hearing. Employer would further have it observed, in support of nondiscriminatory application of the work rules, that 2 of the 6 employees who had worked throughout the strike were 2 of the 10 employ- ees disciplined. Analysis, conclusions, and findings The facts, as determined and marshaled above, essen- tially speak for themselves. Additionally, Cauley im- pressed me generally as a truthful witness; and I have credited her reports of ongoing harassment in the plant, the nature of those more recently occurring, and includ- ing that attributed to Hahn. However, even if I were to accept as to the latter that there was room for some ele- ment of word variance in her personal recollection aris- ing from perceived personal affront from Hahn's re- marks, and credit Hahn's and Kumbier's account (where consistent) as to what was actually said , I am no less sat- isfied that Cauley's recollection itself has accurately re- flected the reasonably implied meaning of those remarks. I have no doubt that the remarks made by Hahn on the morning of January 5, 1983, were not solely intended as a private conversation between Hahn and Kumbier in which Cauley was only by happenstance in attendance, as the General Counsel essentially would have me accept. While there is a difference in the versions be- tween Hahn and Kumbier in relation to the initial in- quiry of Hahn in terms of "Is that," and Cauley's re- called Hahn statement "here comes your lunch" etc., actual meaning and application of even the former was neither obscure, nor unintended as being said in her pres- ence. I thus rather conclude and find the remarks were said for their effect on Cauley; in short, they were di- rected at her. Kumbier's report to Chase confirms both Kumbier's understanding that that was the case, and sup- ports Employer's warrant to go forward with the proc- essing of the Cauley complaint through disciplinary warning. Bebow's conversation with Kumbier established there was no other independent witness to be inter- ADVERTISERS MFG. CO 133 viewed That Kumbier was not also warned, on the facts, of this case, is of no material significance, because Kum- bier was not shown to be an activator or contributor to the offensive remark. In agreement with Employer, I also conclude that this was not just an instance of common shop talk, of a type heretofore used in the plant in presence. of supervisors with impunity, but rather I am constrained to conclude that Cauley initially, and Employer subsequently, viewed it as instance of an offensive remark, directed at the person of an employee, in a manner that violated estab- lished work rules, on which employee complaint was brought and which, on -Employer's investigation, was found to be reasonably established. Neither has the Gen- eral Counsel established that any other victim of such a remark in the shop has registered a similar complaint and had it ignored, or resolved differently. If the General. Counsel would have me conclude, on the basis of the evidence presented herein, that Chase had not pursued the earlier registered complaint on Hintz, and thereby re- vealed Employer had heretofore condoned such conduct, and/or pursued it, obtained admission, and has treated Hahn disparately here, I am not persuaded. First, there was no evidence offered that Hintz was not available to testify. Second, I decline to engage in the indicated re- quired building upon unsubstantiated inferences of fact. Third, if anything appears warranted of record, more ready inference lies from the fact that no discipline of Hintz or Peroni resulted, that confirmatory evidence was not available. The General Counsel has acknowledged that both Hahn and Cauley had engaged in protected concerted activity. However, the General Counsel otherwise argues that it was Hahn's prominence in the plant as chief stew- ard that was the motivating reason for Employer's action taken at this time against Hahn, as whatever Respondent can do to Hahn, because of his union prominence, weak- ens the Union However, the Board has long. held that union prominence does not insulate a steward from a dis- cipline administered for sufficient cause, cf. Klate Holt Co., 161 NLRB 1606, 1612 (1966). Moreover, Cauley's exercise of the varied Section 7 rights was as prominent in this plant. Where cause for discipline appears a selec- tive choice for protection of Hahn, without more proof in establishing that the driving or operative motivation of Employer lay in pretextual and/or evidenced, disparate treatment, involves but unwarranted speculation. The fact is that Hahn. did make certain remarks. in Cauley's presence, which the evidence presented per- suades could be viewed by her and Employer as directed at hei,'and which remarks Cauley, with reason, reason- ably might, and did, regard as debasing -and abusive;- and on which she promptly registered a complaint with her Employer. On investigation of Cauley's complaint; Em- ployer was able to determine'that her complaint was sup- ported independently by another employee: To be'sure, to the extent Employer would so argue, ' I do not .find myself in agreement' with ^Chatterson, that initially a full investigation was conducted here, where Hahn was' not initially interviewed. However, the fullness of an em- ployer's initial investigation is not itself the issue, but'is material only insofar as' a resulting inadequate investiga- tion supports inference of presence of other unlawful em= ployer purpose being pursued and served without regard to what. the facts might actually be In other case cir- cumstances that may well be shown an intended result. On the facts presented in this case, that omission does not persuade me that Employer was discriminatorily mo- tivated in proceeding on the Cauley report after it was essentially confirmed independently by Kumbier The discipline initially awarded Hahn here was a measured one, related to the nature of the remark as perceived by Cauley and determined by Employer, and during the provided employee objection procedure investigation and hearing, discipline. was adjusted downward. The pre- sented evidence is hardly to be viewed as otherwise es- tablishing that Employer was engaged in general dis- criminatory application of its work rules. The matter need not be further belabored. It is concluded and found that the evidence presented by the General Counsel does not predominate in showing that Respondent discrimina- torily issued a confirmed verbal warning to Hahn' on February 18, 1983, for profane or abusive language. Ac- cordingly, it will be recommended that this complaint al- legation be dismissed. Based on the above findings of fact and the record as a whole, I make the following CONCLUSIONS OF LAW 1. Advertisers Manufacturing Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters "General" Local 200, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. On and after February 24, 1983, by refusing to supply the Union with requested information on its gross sales and total incoming orders for the years 1967 to 1982, which information was necessary and relevant in- formation for the Union's performance of its function as exclusive collective-bargaining representative of unit em- ployees in regard to Respondent Employer's proposed discontinuance of its 30-year practice of paying ' a year- end bonus, and other related proposals; Respondent Em- ployer has refused to bargain in violation of Section 8(a)(5) and (1) of the Act. 3 -Respondent has not violated the Act in any other manner ,as alleged in complaints in Cases 30-CA-7496 and 30-CA-7565. THE REMEDY Having found that Respondent Employer has engaged in certain unfair labor, practices, I 'find it necessry to order Respondent to cease and desist therefrom and to. 'take certain affirmative action designed to effectuate the policies of the, Act. Respondeit, having-, herein , wrongfully denied the Union the certain information found necessary and rele- vant to its fulfilling its function as the exclusive bargain- ing representative earlier designated by the unit employ- ees, I shall order it to affirmatively provide such infor- mation to the Union immediately. A broad order is not 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deemed required for remedy of the limited violation found herein. In that regard I have given additional consideration as to whether a broad remedial order is nonetheless war- ranted herein in the light of earlier proceedings. The Board's original decision, and as enforced by the Seventh Circuit, does not provide for such a broad order. The earlier decision of Judge Scully did not provide for a broad order; but the later decision of Judge Maloney does contain a broad remedial order However, their un- derlying findings as to all unfair labor practices therein determined are presently on appeal before the Board, and not, under circumstances presented herein, deemed ripe for consideration by me directly; nor has warrant appeared to me on this record to do so on any central earlier factfinding, conditionally. The unfair labor prac- tices found therein as well as the remedy provided there- fore are self-contained in those respective decisions, and in no sense are they a matter before me. It is my view that, with regard to the unfair labor practice issue now determined and solely for remedy herein, a consideration of a further conditional provision for a broad remedy herein is not presently shown warranted in the circum- stances of this case. I shall provide for an appropriate notice to employees. [Recommended Order omitted from publication.]