General Telephone Company of Florida v. NLRB
| Decision Date | 02 October 1964 |
| Docket Number | No. 20866.,20866. |
| Citation | 337 F.2d 452 |
| Parties | GENERAL TELEPHONE COMPANY OF FLORIDA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William Terrell Hodges, Hugh C. MacFarlane and MacFarlane, Ferguson, Allison & Kelly, Tampa, Fla., for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Asso. Gen. Counsel, Stephen B. Goldberg, Atty., Washington, D. C., Arnold Ordman, General Counsel, Joseph C. Thackery, Attorney, N. L. R. B., for respondent.
Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and McRAE, District Judge.
This case is before the Court upon petition of General Telephone Company of Florida ("the Company") to review and set aside a Decision and Order of the National Labor Relations Board ("the Board") and upon the answer and request for enforcement filed by the Board.
On April 11, 1962, System Council T-2, International Brotherhood of Electrical Workers, AFL-CIO ("the Union") filed an unfair labor practice charge with the Regional Office of the Board in Tampa, Florida, alleging that the Company, along with its predecessor company, engaged in an unfair labor practice in violation of Sections 8(a) (1) and (5) of the National Labor Relations Act ("the Act"), by discontinuing the payment of a "Christmas bonus" to its employees without collectively bargaining with reference thereto.1
The Board filed a Complaint against the Company, alleging that the Company in 1961 unilaterally discontinued payment of "Christmas checks" to its employees in the amount of $10.00 for each employee, which were existing benefits, and that the Company had refused to bargain collectively with reference to such payments.
The Company, in its Answer, denied any unfair labor practice.
In due course, a hearing was held before a Trial Examiner who found that even if the Company violated Section 8(a) (5) of the Act by unilaterally terminating the payment of Christmas checks in 1961 and 1962, the Union was estopped to challenge this unilateral action by the Company. The Trial Examiner further found it unnecessary to decide whether the Christmas checks were "gifts" as distinguished from "bonuses", but nevertheless added that the evidence tended to show that these Christmas checks were "bona fide" gifts. Since there was no independent allegation concerning a violation of Section 8(a) (1) of the Act, the Trial Examiner recommended that the Complaint be dismissed in its entirety.
Upon review, the Board approved and adopted the Trial Examiner's Findings of Fact, but disagreed with his Conclusion of Law that the Union was estopped to challenge the Company's action, and further concluded that the Christmas checks paid by the Company to its employees were "bonuses" or wages and not gifts. The Board, by its Decision and Order, accordingly found that the Company had violated Section 8(a) (1) and (5) of the Act by unilaterally discontinuing payment of Christmas checks to its employees without bargaining collectively; ordered the Company to cease and desist from refusing or failing to bargain collectively with the Union concerning the payment of the disputed Christmas checks; and ordered the Company to pay Christmas checks to its employees for the years 1961 and 1962.
The Company in effect contends that the Board erred in three basic respects: (a) in concluding that the Christmas checks were wages and not gifts; (b) in overruling the Trial Examiner's conclusion that the Union was estopped to complain of the unilateral discontinuance of the payment of the Christmas checks; and (c) in ordering the Company to pay Christmas checks to its employees for the years 1961 and 1962.
The Company is willing, upon request of the Union, to bargain with reference to payment of future Christmas checks, and this point is accordingly not an issue in the case. The contentions of the Company, as set forth above, therefore raise the only issues to be decided in this case.
The Company began issuing Christmas checks in 1925 in the amount of $5.00 for each employee. Such checks were continued (except for the depression years 1932-1935) through 1945. At that time they were increased to $10.00 for each employee for the years 1946-1960. In 1961 the Company decided not to issue Christmas checks, and this decision gave rise to the present case.
Since 1938, the employee pay vouchers prepared by the Company classified the annual Christmas checks as taxable income. On July 11, 1961, while the contract negotiations were in progress, the Company mailed to each employee a "Special Bulletin" listing all of the employees' fringe benefits, and captioned "THIS IS YOUR EXTRA PAYCHECK". This flyer pointed out that each employee actually received an "extra 51 cents pay each hour of the workday". Among the categories listed was "* * * (3)...
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