Century Electric Motor Company v. NLRB

• Decision Date: 20 August 1971
• Docket Number: No. 20636.,20636.
• Citation: 447 F.2d 10
• Parties: CENTURY ELECTRIC MOTOR COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

447 F.2d 10 (1971)

CENTURY ELECTRIC MOTOR COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 20636.

United States Court of Appeals, Eighth Circuit.

August 20, 1971.

Thomas M. Hanna, St. Louis, Mo., for petitioner; McMahon & Berger, St. Louis, Mo., of counsel.

Eli Nash, Jr., Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, John D. Burgoyne, Attys., National Labor Relations Board, for respondent.

Before JOHNSEN, VOGEL and ROSS, Circuit Judges.

JOHNSEN, Senior Circuit Judge.

Century Electric Motor Company, of St. Louis, Missouri, seeks to set aside an order of the National Labor Relations Board, 180 NLRB No. 174, and the Board seeks to have the order enforced.

Century was held to have violated Section 8(a) (5) and (1) of the Act, 29 U.S.C. § 158(a) (5) and (1), in unilaterally engaging in nonpayment of a Christmas bonus for 1968, and in thereafter refusing to negotiate with the Union in regard thereto. Remedially, the Board ordered the Company to make payment of such a bonus for 1968 upon the same basis as had been done in preceding years; to cease and desist from taking any further such unilateral actions in respect to future Christmas bonuses; and to bargain collectively with the Union on any change it might desire to effect in the practice that had obtained at the plant as to the payment of such bonuses.

The plant was one located at Gettysburg, Ohio, in which small electric motors were manufactured for use in water systems. Century had purchased the plant from Tait Manufacturing Company in June, 1967. During Tait's ownership, from 1957 until the sale to Century, Tait had paid the employees a bonus each year at Christmas time. The bonus for the first two years had been upon slightly different bases, but from 1959 on they had regularly consisted of $10.00 for an employee's first year of service, plus $5.00 for each additional year. The payments had been made, however, without any provision in the collective bargaining agreement therefor and without any express promise or agreement by Tait otherwise in respect thereto.

When Century purchased the plant, Tait advised it that the bonuses were discretionary and that the practice was subject to modification or revocation at any time. Century made an express assumption of the obligations and relationships existing under Tait's collective bargaining agreement. Although the agreement, as noted, contained no provision for any bonus, and although Century had owned the plant for only the last half of 1967, it made payment of a bonus for that year similarly as Tait had been doing.

According to the evidence, this payment was made by decision of the plant officers and not on action of the Board of Directors. When the Directors held their first meeting in 1968, they reviewed the affairs of the corporation and the actions of the officers, and the Chairman of the Board thereupon told the officers that the Company was operating at a loss and that there were to be no more payments of Christmas bonuses until the business was making a profit.

As the end of 1968 approached, the officers, on November 27, went over the balance sheets down to October 31 and, as testified to by them, decided that they would not be entitled under the instructions given them by the Board to make payment of a Christmas bonus for that year. They called a meeting of the employees that same day and announced to them that "this had been a poor year from a sales standpoint and the income had been such that it was necessary for us to forego paying a Christmas bonus this year".

The Union and the Company had for some weeks been engaged in negotiative sessions on a new collective bargaining agreement. The previous agreement, made by Tait and assumed by Century, had an expiration date of November 8, 1968. It was stipulated at the hearing that the parties had by November 22 reached an understanding or accord on almost every major issue involved between them, and that a final session was held on December 10 at which "all remaining issues pertaining to such things as contract language, superseniority for stewards and shop classifications were agreed upon". The contract was on that date put into final form and executed.

The new agreement, like the prior one, was without any provision relating to Christmas bonuses. Further, there was included in its closing Article a "wrap-up" or "zipper" provision as follows:

"The parties acknowledged that during the negotiations which resulted in this agreement each side had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter not removed by law from the area of collective bargaining and that the understandings and agreements arrived at by the parties after the exercise of the right and opportunity are set forth in this Agreement. Therefore, the Company and the Union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated, to bargain collectively with respect to any subject or matter referred to, or covered in this Agreement, or with respect to any subject or matter not specifically referred to or covered in this Agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement."

The bargaining committee of the Union at the negotiation sessions had consisted of three employees of the plant and the president of the Union, who was not a plant employee. All of them attended the final session on December 10, and all signed the agreement on behalf of the Union. There is no denial that in their attendance on December 10, each of them knew of the position which the Company had taken on November 27 — the three employee members from having attended the announcement meeting and the Union president from having been advised thereof following the announcement.

The record shows that between the November 27 announcement and the negotiation session of December 10, the Union had on December 3 held a meeting of its members. There is no express testimony as to what took place at this meeting, but it would be only natural to suppose that a part of the meeting was devoted to going over the things upon which understanding and accord had up to that point been reached with the Company. And it would seem no less natural to presume that a part of the meeting also was devoted to a discussion of the Christmas bonus situation, an inference which has added force from the admission made by the president on the stand that one of the committee members had again spoken to him about the bonus at the meeting. One therefore would have to be credulous, indeed, to be able to believe that when the bargaining committee members came to the December 10 session and all four of them remained completely silent about the Company's announcement, this was not done in determined strategy, but simply as deferential courtesy, in that, as...