Ace Beverage Co.

National Labor Relations Board - Board Decisions

Dec 24, 1980

253 N.L.R.B. 951 (N.L.R.B. 1980)

ACE BEVERAGE COMPANY
Ace Beverage Company; Astro Beverage Corpora-
tion; Banner Distributing Co.; Cimino Distribut-
ing Co.; Willie Davis Distributing Co.; Harbor
Distributing Co.; Markstein Distributing Co.;
Metro Distributing Co.; Mission Trucking Com-
pany; Southland Beverage Dist., Inc.; Towne
Distributing Co.; Triangle Distributing Co.;
Westside Distributing Co. and Teamsters Local
Union No. 896, Brewery, Soda and Mineral
Water Bottlers of California, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America. Case 21-CA-
15861
December 24, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On July 11, 1978, Administrative Law Judge
Roger B. Holmes issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.
The Administrative Law Judge found, and we
agree, that Respondents did not violate the Act by
denying certain reinstated economic strikers pro
rata vacation benefits for time worked prior to the
strike, since these employees were not entitled to
such benefits under the terms of the collective-bar-
gaining agreement. Under the vacation benefit pro-
visions of the contract, employees are required to
work a full 45 weeks in a calendar year before
earning any vacation benefits. As the reinstated
strikers were absent, by reason of the strike, for
more than 7 weeks in 1976, the Administrative
Law Judge properly found that they had not
worked the 45 weeks necessary for accruing bene-
fits and that Respondents could not be held in vio-
lation of the Act for denying benefits which had
not yet accrued.' Furthermore, while a provision
in the contract (sec. 26.10) does provide pro rata
benefits for less than 45 weeks of work, such bene-
fits are expressly limited to employees who quit,
retire, or surrender their seniority. Thus, the rein-
See, e.g.., Glomrnac Plastics. Inc., 194 NLRB 406 (1971), where the
Board reached the same result even where the employer's vacation bene-
fit policy-which required employees to work a full 12 months before ac-
cruing any vacation benefits-was not part of a collective-bargaining
agreement.
253 NLRB No. 124
stated strikers were ineligible for benefits under this
latter provision as well.
Although we agree with the Administrative Law
Judge's ultimate conclusion and generally with his
rationale, the argument advanced by the General
Counsel first at the hearing and later in his excep-
tions to the Decision warrants some further com-
ment by us.
The General Counsel asserts that the contract
does not expressly deny pro rata benefits to em-
ployees on strike; hence Respondents could not
lawfully deny pro rata benefits to the reinstated
strikers while granting such benefits to other em-
ployees eligible under section 26.10 because such
conduct, in effect, penalizes employees who exer-
cise the right to strike. We disagree.
Section 26.02 of the contract establishes a gener-
al rule requiring employees to work for an employ-
er for 45 weeks in a calendar year in order to qual-
ify for any vacation benefits. The reinstated strikers
failed to satisfy this provision because of their
strike absences. Pro rata benefits for employees
who work less than 45 weeks are only provided in
section 26.10, which states:
26.10 In the event an employee who has re-
ceived his first vacation from an Employer is
terminated (other than layoff) by that Employ-
er, or who surrenders his seniority with that
Employer, he shall be paid pro rota vacation
pay as follows: for every one hundred sixty
(160) hours worked toward a vacation for that
Employer since his last vacation eligibility
date, but within the period of two (2) calendar
years immediately preceding such termination
or surrender, he shall receive an amount equal
to one-twelfth (1/12th) of the vacation pay he
would have received if he not been terminated
or surrendered his seniority and had worked
the required forty-five (45) weeks to qualify
for a vacation with such Employer.
Pro rata vacation pay shall be paid to the
employee (1) when terminated (other than
layoff), and (2) if he surrenders his seniority at
the time he surrenders seniority, and (3) if not
recalled from layoff before June 30 following,
then on such June 30th
Given the language of section 26.10, particularly
when read in connection with section 26.02, it is
apparent that striking employees who neither quit,
retire, nor surrender their seniority are not entitled
to pro rata vacation benefits, and to find a violation
against Respondents for not treating the reinstated
strikers in the same manner as employees who pre-
maturely quit or retire ignores the fact that the
contract endorses, and the Union has acquiesced in,
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this result. Indeed, a study of the negotiations
which ensued shortly before the instant strike bol-
sters this conclusion. Thus, in April 1976, the
Union sought to amend the vacation benefit provi-
sions set forth above so as to provide pro rata bene-
fits for all employees. The Union clearly recog-
nized that without such an amendment pro rata
benefits were limited to only those employees who
could qualify under section 26.10. The proposed
amendment was negotiated at length throughout
the spring and early summer of 1976, but the Union
did not prevail in its demand. In December 1976,
Respondents and the Union signed the current con-
tract which made no changes in any of the vaca-
tion benefit provisions.
Under these circumstances, to find a violation
here would give the Union through an unfair labor
practice what it sought-but could not achieve-
through good-faith negotiations at the bargaining
table.2 As Respondents urged at the hearing, "The
contract falls where it falls and in effect, contrary
to the agreement of the parties, what the General
Counsel is attempting to do is re-write the agree-
ment." 3
Accordingly, as there is no contention that Re-
spondents were improperly motivated, or that
treatment of the strikers differed from that of cer-
tain nonstrikers who failed to work a full 45 weeks,
or that the narrow pro rata exceptions in section
26.10 were, in reality, a ruse by Respondents to
single out strike absences and penalize employees
for striking, we adopt the Administrative Law
Judge's decision to dismiss the complaint in its en-
tirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
In 1 Roegelm Provisrn Ctompany. 181 NLRBIt 578 (1970), the Bltard
similarly rejecud the unilo's altenlpt to recoiser 5vacation benlits for
striking employees as the employer there had a cntractual right to deny
all vacation benefits to striking employees who. hv striking. had exceeded
the maximum allowable absences
I'he Gieneral Counsel's reliance on cases uch as Frick Companyrr. Ihl
NLRH 1089, 1108 (1966), nfid in part 397 1 2d 956 (3d Cir. 1681), aid
nlmac Crporurton. 225 NLRBl 1188 (1976, i misplaced for Itvol gnifi
cant reasons. First,. strikers in those cases had alreads worked the requi-
site accrual periods prior to the strike and were impermissibly forced to
forfei their accrued benefits because they were absenl, by striking, ii a
particular "eligibility" dlte. By contras, the employees here had not yet
worked the requisite period prior to the strike and therefile had nol ac-
crued any vacation beliefits Sue also V.L. v Knuth ll J rolher,. In.,
584 1 2d 13. fin (7th Cir 1')78) Secotnd, ullikt here, the cplioers in
rick and /ac ,tl were iplementing eliploler-created p licies hich
were not the prodiLt of ne girtiations with a uni il.
DECISION
STATEMENT OF TIHE CASIE
ROGER B. HOI.MES, Administrative Law Judge: The
original unfair labor practice charge in this case was filed
on July 15, 1977, by Teamsters Local Union No. 896,
Brewery, Soda and Mineral Water Bottlers of California,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein called the
Union. The first amended unfair labor practice charge in
this case was filed on July 25, 1977, by the Union.
The Regional Director for Region 21 of the National
l abor Relations Board, herein called the Board, who
was acting on behalf of the General Counsel of the
Board, issued on December 9, 1977, a complaint and
notice of hearing in this case against Ace Beverage Com-
pany; Astro Beverage Corporation; Banner Distributing
Co.; Cimino Distributing Co.; Willie Davis Distributing
Co.; Harbor Distributing Co.; Markstein Distributing
Co.; Metro Distributing Co.; Mission Trucking Compa-
ny; Southland Beverage Dist., Inc.; Towne Distributing
Co.; Triangle Distributing Co.; and Westside Distributing
Co., herein called Respondents.
The General Counsel's complaint alleges that Re-
spondents have engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, herein called the Act.
Respondents filed an answer to the complaint, which
denied the commission of the alleged unfair labor prac-
tices and raised certain affirmative defenses.
The hearing was held before me on March 7, 1978, in
Los Angeles, California. Counsel for the General Coun-
sel and the attorney for Respondents each filed very per-
suasive briefs by the due date of April 11, 1978. Those
briefs have been read and considered.
Upon the entire record in this proceeding and based
upon my observation of the demeanor of the witness
who testified, I make the following:
FINI)INGS O FACT
I. JURISI)I(IION
With the exception of Respondent Mission Trucking
Company, the other 12 Respondents in this case have
been, at all times material herein, corporations engaged
in the wholesale distribution of beverages within the
State of California. Mission Trucking Company has been,
at all times material herein, a corporation engaged in the
transportation by truck of beverages within the State of
Califoirnia.
Ace Beverage Company has a facility located at 550
South Mission Road in Los Angeles, California. Astro
Beverage Corporation has a facility located at 8000
Deering Street in Canoga Park, California. Banner Dis-
tributing Co. has a facility located at 13951 South Main
Street in Los Angeles, California. Cimino Distributing
Co. has a facility located at 455 South Arroyo Parkway
in Pasadena, California. Willie Davis Distributing Co.
has a facility located at 1710 East 111th Street in Los
Angeles, California. Harbor Distributing Co. has a facili-
ty located at 19722 South Alameda Street in Compton,
952
ACE FEVERAGE COMPANY
California. Markstein Distributing Co. has a facility lo-
cated at 2055 East 223d Street in Carson, California.
Metro Distributing Co. has a facility located at 539
South Mission Road in Los Angeles, California. Mission
Trucking Company has a facility located at 550 South
Mission Road in Los Angeles, California. Southland Bev-
erage Dist., Inc., has a facility located at 13099 Temple
Avenue in the City of Industry, California. Towne Dis-
tributing Co. has a facility located at 3616 Noakes Street
in Los Angeles, California. Triangle Distributing Co. has
a facility located at 17720 Studebaker Road in Cerritos,
California. Westside Distributing Co. has a facility locat-
ed at 6722 South Crenshaw Boulevard in Los Angeles,
California.
With the exception of Mission Trucking Company,
each one of the other 12 Respondents named above,
during the 12-month period preceding the issuance of the
complaint in this case, purchased and received goods and
products valued in excess of $50,000 directly from sup-
pliers located outside the State of California.
Mission Trucking Company has annually provided
services valued in excess of $50,000 to customers located
within the State of California, each of which, in turn, has
annually purchased and received goods and products
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of California.
Upon the foregoing facts, which were not disputed in
the pleadings, I find that each one of the 13 Respondents
has been at all times material herein an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE I AHOR ORGANIZATION INVOI.VFI)
It was not disputed in the pleadings that the Union has
been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act. In addi-
tion, it was not disputed that Beer Drivers, Salesmen and
Helpers, Local 203, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America
was, until on or about December 1, 197b, also a labor or-
ganization within the meaning of Section 2(5) of the Act.
On or about December 1, 1976, the Union and Local 203
merged, with the Union becoming the lawful successor
to Local 203.
I find these undisputed facts to be so. However, simply
for convenience in this Decision, the term "Union" will
encompass both Local No. 896 and L.ocal No. 203, since
Local 203 was merged into Local 896.
Ill. THE Al I EC(il:I) UNFAIR LABOR PRACTICES
A. he Applicable Contract Provisions
The Union and each one of Respondents were parties
to a collective-bargaining agreement covering the wages,
hours, and other terms and conditions of employment of
the employees of Respondents. The effective term of that
contract was from June 1, 1973, through June 1. 1976.
Among the provisions in that agreement was a section 26
entitled "Vacations."
A copy of the current collective-bargaining agreement
between the Union and each one of Respondents was in-
troduced into evidence as General Counsel's Exhibit 3.
The effective dates of that contract are from December
6, 1976, to October 1, 1979. That contract contains the
same provisions with regard to vacations as did the
1973-76 collective-bargaining agreement. The only dif-
ference is that in the current agreement the vacations
provisions are set forth in section 24, whereas in the ear-
lier contract the vacations provisions were set forth in
section 26. Otherwise, the provisions on that particular
subject are identical.
The vacations provisions are:
Section 26-Vacations
26.01 There shall be a common anniversary date
period, which shall be from January I through D[e-
cember 31 of each year. The common anniversary
date for qualifying for vacation shall be January I
of each year.
26.02 In order to qualify for a vacation, an em-
ployee must be employed by the same Employer for
forty-five (45) weeks within a calendar year. Any
employee who has not qualified for a vacation
within one (I) calendar year may qualify for a xnaca-
tion within a period of two (2) successive calendar
years
26.03 An employee who has been continuously
employed by an Individual Employer in more than
one (I) calendar year, but who does not qualify for
a vacation in the first calendar year that he is eni-
ployed by that Individual Employer by reason of
the fact that he did not work forty-five (45) weeks
in that calendar year for that Individual Employer,
shall receive one-twelfth (/12th) of that year's va-
cation pay, but no time off, for every month in
which he worked at least one hundred twenty (120)
hours in excess of twelve (12) such months in the
first two (2) calendar years in which he was em-
ployed by that Individual Employer.
20.04 After having qualified for his first vacation
period, the number of weeks of paid vacation \k hich
an employee is entitled to depends upon the numbtr
of vacations which an employee has earned with an
Employer, while continuing to have unbroken se-
niority with such Employer. Such vacation periods
shall he as follows. [For I earned vacation with anl
Employer I week of paid vacation: for 2 to 4
earned vacations 2 weeks of paid vacation: for 5 to
7 earned vacations 3 weeks of paid vacation for 8
to 19 earned vacations 4 weeks of paid vacation,
and for 20 or more earned vacations 5 weeks of
paid vacation.]
26.05 No employee shall be entitled to a vacation
in a period short of a calendar year. No time
worked in excess of forty-five (45) weeks in a calen-
dar year can be carried over as a credit to the next
vacation.
26.0h Employees shall be allowed a maximum of
sixty (60) calendar days on account of illness or ac-
cident and all time actually taken as a vacation
period during said calendar year period, and the
same shall constitute time worked for the purpose
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of computing eligibility for vacation under the pro-
visions of this Section 26.
26.07 Compensation for said vacation, when
taken, shall be paid at the rate provided for on the
shift on which an employee worked. In the event
that an employee is laid off prior to the commence-
ment of his scheduled vacation and has qualified for
vacation, if such employee requests that he be paid
his vacation pay while on layoff, such vacation pay
shall be paid to him. Such vacation pay shall be
forty (40) times the first shift hourly rate of his clas-
sification, and such vacation pay shall be in lieu of a
vacation eriod.
26.08 It is the intention of the Employer that va-
cations will be taken from May to September, if
possible. However, in the event that an employee
has earned more than two (2) weeks' vacation, the
employee will not be entitled to take more than two
(2) weeks' vacation between May I and September
30. Seniority shall prevail relative to choice of vaca-
tion time.
26.09 No employee discharged for cause shall re-
ceive pro rata vacation. This provision shall not
serve to deny vacation pay to an employee dis-
charged after he has qualified for a vacation.
26.10 In the event an employee who has received
his first vacation from an Employer is terminated
(other than layoff) by that Employer, or who sur-
renders his seniority with that Employer, he shall
be paid pro rata vacation pay as follows: For every
one hundred sixty (160) hours worked toward a va-
cation for that Employer since his last vacation eli-
gibility date, but within the period of two (2) calen-
dar years immediately preceding such termination
or surrender, he shall receive an amount equal to
one-twelfth (1/12th) of the vacation pay he would
have received if he had not been terminated or sur-
rendered his seniority and had worked the required
forty-five (45) weeks to qualify for a vacation with
such Employer.
Pro rata vacation pay shall be paid to the employ-
ee (I) when terminated (other than layoff), and (2)
if he surrenders his seniority at the time he surren-
ders seniority, and (3) if not recalled from layoff
before June 30 following, then on such June 30th.
Time paid for hereunder may never be counted
for the purpose of any other vacation credit.
The findings of fact set forth above are based upon a
stipulation by the parties, matters not disputed in the
pleadings, and documentary evidence.
B. The Negotiation Meetings
Martin H. Schinnerer has been chairman of the board
of Southland Beverage since April 1977. Prior to that
time, Schinnerer had been president of that company
since 1968.
Schinnerer participated in contract negotiations be-
tween the Employers and the Union in 1976. He said
that he attended all of the negotiation meetings, which
he estimated were 10 to 12 in number.
At the first meeting concerning contract negotiations
on April 5, 1976, the Union presented its original con-
tract proposals. A copy of those proposals made by the
Union was introduced into evidence as Respondents' Ex-
hibit 1. The document is nine pages long and contains
many proposals. One of those proposals which was dis-
cussed at the meeting was item 17 which pertained to
proposed contract provisions regarding vacations.
Among the Union's proposals was one listed as item
17(h) which proposed with regard to section 26.05 in the
contract existing at that time, "Delete and provide pro
rata for all employees." The Union's spokesman at the
meeting told the Employers that this was one of the
items which they insisted on being put into the contract.
Attorney Erwin Lerten, who was representing the Em-
ployers, denied the Union's request.
At the next negotiation meeting, which was held on
May 10, 1976, the Union again requested that the pro
rata provision regarding vacations be put into the con-
tract, and Attorney Lerten again stated that it would not
be an issue which the Employers would consider. Ac-
cording to Schinnerer, the parties went over all of the
items in the Union's initial proposal item by item.
At the May 15, 1976, negotiating session between the
Employers and the Union, the subject of pro rata vaca-
tion pay was again brought up by the Union. The
Union's spokesman said at that meeting that it was an
issue that the Union was requesting to be included in the
new contract. Attorney Lerten made a counterproposal
that the 60-day credit for illness be substituted for the pro
rata vacation for all employees. The Union's response
was that they would not buy that proposal.
The Union's revised written proposals, which are
dated May 22, 1976, were introduced into evidence as
Respondents' Exhibit 2. That document contains an item
12 with regard to the vacation proposals. It proposes,
with regard to section 26.05 of the contract existing at
that time, the following: "Provide pro rata vacations for
all employees."
The next negotiating meeting was held on May 24,
1976. At that meeting Attorney Lerten proposed once
again that the Employers would consider the pro rata va-
cation for all employees if the item in the then current
contract regarding 60-day credit for illness be deleted.
The Union's spokesman said that the Union would not
give that proposal any consideration.
At the May 28, 1976, negotiating session, the Union's
proposal and the Employers' counterproposal came up
once again. Schinnerer testified on direct examination by
the attorney for Respondents as follows:
Q. Now, directing your attention to May 28,
1976, did you attend a negotiation meeting on that
date?
A. Yes, I did.
Q. Who represented the Union at that meeting?
A. Mr. Sperling represented the Union.
Q. Anyone else?
A. And I think that Fahy was there and again
one of the members of 896, and Mr. Lerten repre-
sented the employers.
954
ACE BEVERAGE COMPANY
Q. Was there anyone from the Federal Media-
tion?
A. On the 28th?
Q. Yes, sir.
A. Yes.
I think that was the first meeting that we had,
and Mr. Allen, Frank Allen, from the Federal Me-
diation Board was there at that meeting, that we
met at the Federal office.
Q. Was there any discussion of pro rota vacation
pay at that meeting?
A. It again was in their proposal, the Union's
proposal.
Q. Who said it?
A. And Mr. Sperling presented that proposal
Q. What did he say about it?
A. He said this is an item that must be placed in
the 1976 contract, the ratification for all employees.
Q. Was there any reply given by any company
representative?
A. I think again we through Mr. Lerten made the
offer of if they would withdraw the 60-day credit
for illness we would consider that pro rata vacation
for all employees.
Q. All right. What was the Union's response to
that?
A. They gave no response except that they said
they would stand on the same basis that they have
in the past, that they need this item in the contract.
The Union's next written contract proposals dated
June 4, 1976, were introduced into evidence as Respond-
ents' Exhibit 3. Among the various proposals made by
the Union was item 8 which provided: "Vacations-Pro-
vide for pro rata vacation for all employees after qualify-
ing for a first vacation."
The next negotiation meeting was held on June 14,
1976. At that meeting the Federal Mediation and Conci-
liation Service commissioner, Frank Allen, verbally pre-
sented to the Employers "some final proposals" from the
Union. Attorney Lerten asked Commissioner Allen
whether the pro rata vacation item was dropped from the
Union's proposals, and Commissioner Allen replied,
"Yes," and that it would remaiii the same as i the 1973-
76 contract. According to Schinnerer, the Union never
subsequently reinstated its demand for pro rata vacations.
A copy of a letter dated October 28, 1976, from the
Union to Attorney Lerten was introduced into evidence
as Respondents' Exhibit 4. The letter is seven pages long
and is typewritten single-spaced. The letter does not con-
tain any proposal with regard to pro rata vacation pay.
A letter dated November 9, 1976, from Attorney
Lerten to the Union was introduced into evidence as Re-
spondents' Exhibit 5. It is in reply to the Union's letter,
and it is also seven pages long and is typewritten single-
spaced. It also does not contain any provision with
regard to pro rata vacation pay.
The foregoing findings of fact in this section are based
upon the uncontradicted and credited testimony of
Schinnerer, who was the only witness to testify in this
proceeding, and the findings are also based upon the
documentary evidence referred to above.
C. The Strike and Subsequent Events
On June 1, 1976, the employees of Southland Beverage
went on strike and remained on strike through December
6, 1976.
On June 30, 1976, the employees of Metro Distributing
went on strike and remained on strike through December
6, 1976.
On October 6, 1976, the employees of the other 11 Re-
spondents in this proceeding went on strike, and they too
remained on strike through December 6, 1976.
In each instance, the employees of each one of Re-
spondents were on strike for a period of time in excess of
7 weeks. Between December I and December 6, 1976,
each of Respondents reinstated all of the striking em-
ployees. As noted earlier, the Union and each one of Re-
spondents entered into a new collective-bargaining agree-
ment fwith effective dates from December 6, 1976,
through October 1., 1979.
Compilations from each one of the payroll records of
Respondents herein were introduced into evidence as
General Counsel's Exhibits 2(a) through 2(m). Those ex-
hibits show for the employees the following: Date of
hire; job classification; termination date, if any; dates
worked; dates of paid vacation; dates of other paid ab-
sences and the nature of the absences; dates of other
unpaid absences and the nature of such; and wages in
lieu of vacations and when, the amount, and for what
period. The compilations cover each of the years of
1976, 1977, and 1978. The compilations from the records
of Towne Distributing are different from the records of
the other Employers in that Towne Distributing operates
on a calendar year basis and, therefore, pays at the end
of the calendar year for vacation earned in that year.
(See G.C. Exh. 2(k).)
Based on the position that the employees in question
had not worked for 45 weeks during calendar year 1976,
they were not paid vacation pay in 1977 by Respondents.
However, certain striking employees who quit their em-
ployment did receive prorata vacation pay for the time
they actually worked in 1976.
There is one exception to the foregoing, and that in-
volves employee Mervin Doebler. He appears on Gener-
al Counsel's Exhibit 2(a). Doebler was scheduled to take
his vacation prior to the strike, and his vacation period
coincided with the strike. While he was on strike,
Doehler filed a complaint with the Labor Standards En-
fircement Division of the State of California, and there-
after Doebler was given his vacation check during the
strike. Subsequently, in 1977, Doebler, pursuant to the
terms of the contract, was credited with those weeks in
1976 for which he was paid vacation for the purpose of
computing his 45-week eligibility in 1976 for vacation in
1977. Unlike the other strikers, Doebler was paid 2
weeks of vacation in 1977.
The foregoing findings of fact in this section are based
upon stipulations by the parties, matters not disputed in
the pleadings, and documentary evidence.
D. Conclusions
The General Counsel alleges in paragraph 20(a) of his
complaint that Respondents have failed since on or about
955
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
January 16, 1977, "to grant pro rata vacation entitlements
accrued during 1976 by their employees, or pay wages in
lieu thereof." In paragraph 20(b) of the complaint, the
General Counsel further alleges that Respondents' failure
to take such action was "because their employees en-
gaged in union or other protected concerted activities
for the purposes of collective bargaining or other mutual
aid or protection and because they participated in the
strike described in paragraph 17(b) above."
Citing N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S.
375 (1967), counsel for the General Counsel points out
that the strikers retained their status as employees during
the course of the economic strike. He concedes that,
during the time of the strike, Respondents were under no
obligation to pay them wages or other compensation,
and, therefore, he agrees that none of the reinstated strik-
ers who worked less than 45 weeks in 1976 because of
the strike were entitled to full vacation benefits under
the terms of the contract. However, he argues that Re-
spondents' failure to pay pro rata vacation benefits to the
reinstated strikers for the actual time that they worked
for an employer during 1976 was violative of Section
8(a)(l) and (3) of the Act.
In the General Counsel's view, since such pro rata va-
cation benefits were given to employees who quit work
or were terminated even if the employees did not meet
the 45-week work requirement, he argues, "to grant pro
rata vacation benefits to quitting or terminated employ-
ees-some of whom herein were strikers who elected to
not return after the strike-and not to grant them to re-
instated strikers has the natural and foreseeable conse-
quence of penalizing the strikers for engaging in lawful
protected activity."
He distinguishes the Board's Decision in Knuth Bros..
Inc., 229 NLRB 1204 (1977), by taking the position that
the strikers involved herein had worked at least 160
hours during the calendar year and thus under the terms
of the contract, section 26.10, were eligible for pro rata
vacation benefits if they had quit work or if they had
been terminated rather than reinstated at the end of the
strike. He finds applicable here the Board's Decision in
Elmac Corporation, 225 NLRB 1188 (1976), where the
Board found that the respondent therein violated Section
8(a)(I) and (3) of the Act by withholding accrued vaca-
tion pay from striking employees while granting such
benefits to other employees, including employees who
were terminated by the respondent therein.
On the other hand, the attorney for Respondents
argues that the Knuth Bros. Decision is applicable here,
"since Respondents applied the same vacation policy to
both strikers and non-strikers. Since the contract provi-
sion adopted is the same contract provision as was in
effect in the 1973-1976 Agreement, there clearly is no
evidence of any intent to discriminate against strikers."
Under Respondents' view, the employees in question
were not entitled to vacation benefits because they had
not worked 45 weeks during the calendar year 1976 as
required by the terms of the collective-bargaining agree-
ment. However, the attorney for Respondents points out
that certain of the striking employees who quit their em-
ployment with their employer did receive pro rata vaca-
tion pay for the time actually worked by them during
the year 1976 in accordance with the provisions of the
contract. Respondents urge that the terms of the collec-
tive-bargaining agreement do not provide for the pay-
ment of such pro rata vacation pay unless the employee
is terminated or unless the employee surrenders his se-
niority. Respondents take the position that none of the
employees who were denied pro rata vacation pay were
either terminated or surrendered their seniority.
Citing the court's opinion in N.L.R.B. v. Alamo Ex-
press, Inc. and Alamo Cartage Company, 420 F.2d 1216
(5th Cir. 1969), Respondents find that case to be analo-
gous to the situation here where Respondents urge that
the collective-bargaining agreement involved herein does
not provide for vacation pay for any period of time less
than 45 weeks in a calendar year, and, therefore, the
striking employees involved herein were not entitled to
any vacation benefits for the calendar year 1976. Re-
spondents also point to the Board's Decision in Gloimac
Plastics, Inc., 194 NLRB3 406 (1971), where the Board
dismissed a complaint alleging a violation of Section
8(a)( ) and (3) of the Act with regard to the denial of
vacation pay to strikers. As pointed out by the Trial Ex-
aminer in Glomac Plastics at 412, he found the situation
there to be distinguishable from the Supreme Court's
opinion in '.L.R.B. v. Great Dane Trailers, Inc., 388 U.S.
26 (1967), since "the rights of the strikers had not ac-
crued at the time, April 20, when they went on strike."
Finally, Respondents urge that, by the actions of the
Union during contract negotiations in 1976, and by the
Union's agreement to enter into the new 1976-79 collec-
tive-bargaining agreement, the Union waived the right of
the striking employees to receive pro rata vacation pay,
and, therefore, the failure of Respondents to pay pro rata
vacation pay to such striking employees could not have
been violative of the Act.
After weighing the opposing positions of the parties, I
have reexamined the applicable provisions in the 1973-76
collective-bargaining agreement between Respondents
and the Union. First of all, I note that section 26.02
makes it clear that, in order to qualify for a vacation, an
employee must have been employed by the same em-
ployer for 45 weeks within a calendar year. While the
employees who went on strike and who were later rein-
stated by Respondents remained employees within the
meaning of the Act, the reinstated strikers were not "em-
ployed" by their employer during the period of the
strike. Thus, in my analysis, the employees ill question
did not meet the initial qualification under the terms of
the contract to be entitled to a vacation.
With regard to being entitled to a pro rata vacation, I
note that the terminology "pro rata vacation" appears in
two sections of the applicable contract provisions. First
is section 26.09, which does not have a direct bearing on
the issues here, since it provides in pertinent part that
"no employee discharged for cause shall receive pro rata
vacation." However, the use of that terminology in that
section and the section which follows suggests that the
contract terms do place strict limitations on when pro
rata vacation may or may not be paid.
Turning now to section 26.10. which is crucial to the
issues in this case, I note that there are two operative
956
ACE BEVERAGE COMPANY
facts which require the employer to pay pro rata vaca-
tion pay to an employee. Those operative facts happen:
(1) when the employee is terminated other than by a
layoff; or (2) when the employee surrenders his seniority
with his employer. In my reading of that section, one of
those two facts would have to occur in order for the em-
ployer to be required to pay an employee pro rata vaca-
tion pay.
From the analysis of the contract provisions agreed to
by the parties, I conclude that the striking employees
had not accrued vacation entitlements, like the situation
in Glomac Plastics. Furthermore, I conclude that Re-
spondents' refusal to give pro rata vacation pay to the re-
instated strikers was not because the employees had par-
ticipated in a strike, but instead it was because Respond-
ents were following the terms of the contract like the sit-
uation in Knuth Bros.
The attorney for Respondents persuasively argued at
the hearing:
In other words, it is Respondent's position that,
while strikers cannot be treated worse than employ-
ees who do not strike, conversely they are not sup-
posed to be treated better than employees who do
not strike. The contract falls where it falls and. in
effect, contrary to the agreement of the parties,
what General Counsel is attempting to do is rewrite
the agreement between the parties.
l In the event no exceptions are filed as provided by Sec 102 4 Of ih11
Rules and Regulaltill of he Nalio,ial ahbor Relations Board. the idl-
ings. concllusiolns and recommended ()rder herein siall as prolded ill
Sec 1t)2 48 of Ihe Rules aid RegulatiIIon, he adopted b\ th Board and
After considering the foregoing and the entire record,
I conclude that a preponderance of the evidence does
not establish that Respondents have engaged in :he
unfair labor practices alleged in the complaint.
In view of the foregoing, I also conclude that it is un-
necessary to reach the defense of Respondents that the
Union waived the right of striking employees to receive
pro raia vacation benefits.
CONCI tIS!ONS OF LA"
Upon the basis of the foregoing findings of fact and
the entire record in this proceeding, I make the follow-
ing:
1. Each one of Respondents is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondents have not engaged in the unfair labor
practices alleged in the complaint in this proceeding.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER'
It is hereby ordered that the complaint in this proceed-
ing be dismissed in its entirety.
become ,l s Ii, Tilig cclulonl. andl ()rdel. ;and all ihblections theret,
shall be di.lTlCed l ait d or all ;pllrpr)cx- IX.
q57