500 F.2d 399 (9th Cir. 1974), 73-2253, N.L.R.B. v. Nello Pistoresi & Son, Inc.

Docket Nº:73-2253.
Citation:500 F.2d 399
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NELLO PISTORESI & SON, INC. (S & D Trucking Co., Inc.), Respondent.
Case Date:July 01, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 399

500 F.2d 399 (9th Cir. 1974)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

NELLO PISTORESI & SON, INC. (S & D Trucking Co., Inc.), Respondent.

No. 73-2253.

United States Court of Appeals, Ninth Circuit.

July 1, 1974

Page 400

Elliott Moore, Acting Asst. Gen. Counsel, NLRB, Washington, D.C., Charles M. Henderson, Director, Region 19, NLRB, Seattle, Wash., for petitioner.

Wesley M. Wilson, Yakima, Wash., for respondent.

Before HUFSTEDLER and GOODWIN, Circuit Judges, and SKOPIL, 1 District Judge.

OPINION

ALFRED T. GOODWIN, Circuit Judge:

The National Labor Relations Board seeks enforcement of its order against Nello Pistoresi and Son, Inc., reported at 203 N.L.R.B. No. 108, 83 L.R.R.M. 1212 (1973).

Reversing the administrative-law judge, a divided panel of the Board held that, by unilaterally discontinuing its Christmas bonus in 1971, Pistoresi violated sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1). Because the Board's finding that the bonuses were wages, hours, or other terms and conditions of employment is not supported by substantial evidence, enforcement of its order is denied.

An employer violates sections 8(a)(5) and 8(a)(1) of the Act when he unilaterally alters 'wages, hours, and other terms and conditions of employment,' National Labor Relations Act § 8(d), 29 U.S.C. § 158(d), without first consulting and negotiating with the bargaining representative of his employees. NLRB v. Katz, 369 U.S. 736, 742-743, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); American Smelting & Refining Co. v. NLRB, 406 F.2d 552 (9th Cir.), cert. denied, 395 U.S. 935, 89 S.Ct. 1998, 23 L.Ed.2d 450 (1969). Bonuses such as the one here at issue are considered wages if they are of such a fixed nature and have been paid over a sufficient length of time to have become a reasonable expectation of the employees and, therefore, part of their anticipated remuneration. Century Electric Motor Co. v. NLRB, 447 F.2d 10, 14 (8th Cir. 1971); NLRB v. Harrah's Club, 403 F.2d 865, 874 (9th Cir. 1968); Beacon-Journal Publishing Co. v. NLRB, 401 F.2d 366, 367 (6th Cir. 1968); NLRB v. Wonder State Mfg. Co., 344 F.2d 210, 213 (8th Cir. 1965); NLRB v. Niles-Bement-Pond Co., 199 F.2d 713, 714 (2nd Cir. 1952).

Pistoresi has been operating a live-stock-hauling business since 1958, employing approximately 25 employees on a...

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