Borden, Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1978

235 N.L.R.B. 982 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Borden, Inc., Borden Chemical Division and Local No.
553, International Chemical Workers Union. Cases
1-CA-12252 and 1-CA-12327
April 20, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 31, 1977, Administrative Law Judge
James T. Youngblood issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in opposition to the exceptions of
the General Counsel and in support of the Decision
of the Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
For the reasons set forth in his Decision, we adopt
the Administrative Law Judge's finding that Respon-
dent violated Section 8(a)(5) and (1) of the Act by
refusing to furnish information requested by the
Union concerning dividends derived from certain
insurance benefit plans covering its employees and
any distribution thereof. The remedy, order, and
notice which follow clarify the Administrative Law
Judge's Decision by specifying that the information
Respondent is obligated to furnish relates to divi-
dends derived for the insurance benefit plans cover-
ing employees at its Leominster facility. We also
adopt the Administrative Law Judge's finding that
the Union did not request the number of employees
participating in the various benefit plans.1
For the reasons set forth herein, we disagree with
the Administrative Law Judge's conclusion that
Respondent did not violate Section 8(a)(5) and (1) of
the Act by refusing to provide information requested
by the Union for purposes of collective bargaining,
relating to Respondent's average cost per Leominster
bargaining unit employee per hour for certain insur-
ance and pension benefits; his conclusion that
Respondent did not violate Section 8(a)(5) and (1) of
the Act by refusing to provide information requested
L In adopting this finding, we do not rely on the Administrative Law
Judge's statement that employee Collette was not a disinterested witness
which is contained in his explanation of reasons for crediting Respondent's
witness Brenning over Collette. Neither witness can be characterized as
disinterested, and, accordingly, any inference arising from this fact which
detracts from Collette's credibility detracts from Brenning's credibility with
235 NLRB No. 138
by the Union regarding employees' average cost for
the same benefits; his conclusion that Respondent
did not violate Section 8(a)(5) and (1) of the Act by
refusing to furnish information concerning the cost
and the number of employees participating in the
Blue Cross-Blue Shield benefit plan; and his conclu-
sion that Respondent did not violate Section 8(a)(3)
and (1) of the Act by failing to pay, on request,
vacation pay which had accrued as of June 1, 1976.
Requested Information
As more fully detailed in the Administrative Law
Judge's Decision, the Union, which has been the
collective-bargaining representative for Respondent's
employees in an appropriate unit for some time,
began negotiations for a new contract in August
19762 in anticipation of the expiration of the existing
agreement on September 30. During the negotiations,
the Union requested, inter alia, the following infor-
mation: (1) Respondent's average cost per Leomin-
ster bargaining unit employee per hour for life
insurance, accident and sickness insurance, long term
disability insurance, and the pension programs (here-
inafter the Borden benefit plans); (2) the average cost
to Leominster bargaining unit employees per hour
for the above Borden benefit plans; and (3) the cost
of the Blue Cross-Blue Shield benefit plan and the
number of employees participating therein.
Respondent in fact produced the following infor-
mation relevant to the present proceedings: (1) the
average corporate cost per employee for the above-
listed Borden benefit plans which took into account
Leominster bargaining unit employees as well as
bargaining unit employees at other Borden facilities
participating in the same Borden benefit plans; and
(2) the number of employees, including nonunit
employees, participating in the Blue Cross-Blue
Shield plan. Respondent did not furnish information
regarding average employee costs per hour for the
Borden benefit plans or the Blue Cross-Blue Shield
plan. Respondent contended that it had no obliga-
tion to furnish this information since it was con-
tained in booklets distributed to employees or could
be obtained by simple calculations from information
contained in these booklets, the collective-bargaining
agreement, and employee paycheck stubs.
The Administrative Law Judge concluded that
Respondent fulfilled its obligation to produce infor-
mation regarding its costs for the Borden benefit
plans by giving average corporate costs for these
equal force. However, we view the Administrative Law Judge's comment to
be at most a minor factor in this particular credibility resolution, and,
accordingly, we conclude there is no sufficient basis for overturning his
determination of credibility in this instance. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951).
2 Unless otherwise indicated all dates herein refer to 1976.
982
BORDEN, INC., BORDEN CHEMICAL DIVISION
plans. Essentially, he concluded that the General
Counsel failed to show that Respondent had its cost
figures for the Borden benefit plans in the form
requested by the Union-i.e., specific costs for the
Leominster facility-and that Respondent satisfied
its bargaining obligation by supplying information in
the only form available. With regard to average
employee costs for the Borden benefit plans and the
cost figures for the Blue Cross-Blue Shield plan, the
Administrative Law Judge concluded that Respon-
dent had no obligation to produce this information
since the Union either had this information or could
calculate this information for itself. The Administra-
tive Law Judge also concluded that Respondent
satisfied its obligation to give the number of employ-
ees participating in the Blue Cross-Blue Shield
program by giving a figure reflecting unit and
nonunit employee participants. We disagree that
Respondent fulfilled its obligation in these areas.
The employer's obligation to supply information
which is reasonably necessary to a union in carrying
out its collective-bargaining function is well estab-
lished. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432
(1967); N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149
(1956). In agreement with the Administrative Law
Judge, we find that the information sought by the
Union was reasonably necessary to its bargaining
function.
Specifically, with regard to Respondent's providing
its average corporate cost per employee for the
Borden benefit plans in lieu of its average cost per
Leominster bargaining unit employee, we note the
following: The record contains evidence that at least
some information regarding Respondent's costs for
the Borden benefit plans at the Leominster facility
was available. In this connection, we refer to Re-
spondent's July 22, 1974, letter3 and the admission of
Respondent's witness Brenning 4 that for some pur-
poses Respondent analyzes the costs of benefit
programs for a particular facility. Moreover, even if
some of the information requested was unavailable in
the form requested, the record indicates that Respon-
dent fell short of its obligation to make a reasonable
effort to obtain this information, to investigate
alternative means for obtaining this information, or
to explain or document the reasons for its unavail-
ability. General Electric Company, 150 NLRB 192
(1964). Accordingly, we find that Respondent did not
meet its bargaining obligation with regard to this
requested information and therefore violated Section
8(a)(5) and (1) of the Act.
With regard to information on the average cost to
employees for the Borden benefit plans and the
a This letter reads in pertinent part: "premiums paid for that particular
location [Leominster] had been insufficient to cover the cost of claims
payments in 1972."
average costs for the Blue Cross-Blue Shield pro-
gram, we note that it is well established that
availability of this information from other sources
does not relieve the employer of its obligation to
furnish the requested information. The Kroger Com-
pany, 226 NLRB 512, 513 (1976). Moreover, it does
not appear that the alternative sources of informa-
tion cited by Respondent contained all the requested
information. For example, Respondent's labor rela-
tions manager Brenning testified that the booklets
distributed to employees indicated that for long term
disability insurance the cost per employee is 1
percent of their earnings over $5,200 a year. In order
for the Union to calculate the average cost per
employee per hour, it would have to determine how
many employees actually participated in this benefit
program, and what the annual earnings of each
employee participant were. It does not appear that
this information was available to the Union from any
source other than Respondent. By refusing to pro-
duce information concerning average employee costs
for the Borden benefit plans and cost information for
the Blue Cross-Blue Shield plan, we find that
Respondent violated Section 8(a)(5) and (1) of the
Act.
In response to the Union's request for the number
of employees participating in the Blue Cross-Blue
Shield plan, Respondent reported that 136 people at
the Leominster facility were covered. We note that at
the time this information was given there were only
134 unit employees. The Administrative Law Judge
concluded that Respondent met its obligation with
respect to this requested information on the basis of
his assumption that this figure reflected 134 unit
employee participants and two nonunit employee
participants. All that can be stated with any certainty
is that some combination of unit and nonunit
employees totaling 136 participated in this particular
benefit plan. Accordingly, we find that Respondent
fell short of producing the information actually
requested and thereby violated Section 8(a)(5) and
(1) of the Act.
Vacation Pay
As more fully detailed in the Administrative Law
Judge's Decision, it appears that an extra week of
vacation had accrued to several of Respondent's
employees, including Donald J. Collette, president of
Local 553, as of June 1. In accordance with the
contract and past practice, employees with extra
weeks of vacation are permitted to schedule their
vacations at any time during the June I to December
4 Brenning is Respondent's regional labor relations manager for the
northeast area.
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
15 vacation period. The only qualification arises
when so many employees are scheduled for the same
vacation time that plant production would be im-
paired. We also note that under the contract employ-
ees are required to take their vacation in lieu of
working and receiving vacation pay. Prior to the
beginning of the strike on October 1, employees
Collette and Bland requested that their vacations be
scheduled for the first week in October. Bland
apparently received his vacation pay prior to October
1. Collette did not. On October 7 Collette requested
that Respondent pay all accrued vacation benefits to
employees qualified for this benefit under the con-
tract. Respondent refused this request and stated,
according to uncontradicted testimony, that it would
not pay vacation pay to employees on strike. Re-
spondent contended that according to the contract it
had no obligation to pay vacation pay in lieu of
actual vacation until the expiration of the contractual
vacation period on December 15, and that time off
on strike would not be considered time off for
vacation purposes so as to render employees eligible
to receive vacation pay. Respondent actually paid
the accrued vacation benefit on or about December
26.5 The Administrative Law Judge found merit in
Respondent's contentions and, citing G. C. Murphy
Co., 207 NLRB 579 (1973), concluded that Respon-
dent did not violate Section 8(a)(3) and (1) of the Act
by refusing to pay vacation benefits on request. We
disagree as we conclude that G. C. Murphy is not
controlling. 6
It is readily apparent in the present case that under
the contract and pursuant to past practice, but for
the strike, the discriminatees herein would have been
able to take their vacations and receive vacation pay
upon request. The fact that Respondent paid accrued
vacation benefits almost 3 months after the request
for these benefits was made does not militate against
the finding of a violation as our dissenting colleague
suggests. The fact remains that the record amply
demonstrates that employees were denied accrued
vacation benefits when they requested these benefits,
that these benefits were withheld for a considerable
period of time, and that such benefits would have
been conferred upon demand but for the protected
strike activity. There is no evidence that Respondent
either had a contractual entitlement or other legiti-
° Collette did not receive his vacation pay. Respondent contends that
pursuant to the collective-bargaining agreement he forfeited any rights to
vacation pay when he was discharged in November. The issue of Collette's
discharge is not before us in this proceeding.
a Chairman Fanning does not view G. C. Murphy as controlling authority
and finds a violation for the reasons stated in his dissent in that case.
Member Jenkins who was not on the panel which decided G. C. Murphy
finds that case factually distinguishable from the case before us and,
therefore, not controlling. Thus, although the contract in that case provided,
similar to the contract in this case, that "an employee shall not be paid in
lieu of vacation," the contract further provided that "In lo employee shall be
mate business interest for dictating how time off
from work should be spent. Accordingly, we con-
clude that the denial of accrued vacation benefits
solely because employees were engaged in protected
strike activity was inherently destructive of employee
rights and, therefore, violative of Section 8(a)(3) and
(1) of the Act. In view of the fact that we have found
the withholding of this benefit inherently destructive
of employee rights, unlike our dissenting colleague,
we find it unnecessary to consider the issue of proof
of antiunion motivation. N.L.R.B. v. Great Dane
Trailers, Inc., 388 U.S. 26 (1967).
CONCLUSIONS OF LAW
1. The Respondent, Borden, Inc., Borden Chemi-
cal Division, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local No. 553, International Chemical Work-
ers Union, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All hourly production, maintenance (including
boilerroom licensed foremen), and shipping employ-
ees, and over-the-road truckdrivers of Respondent
employed at the Leominster works in Leominster,
Massachusetts, and all hourly laboratory technicians
of Respondent employed at 511 Lancaster Street at
the Leominster works in Leominster, Massachusetts,
excluding all other employees such as executives,
supervisors, foremen, assistant foremen, office em-
ployees, watchmen, guards, chemists, laboratory
technicians (60 Elm Hill Avenue), and professional
employees, and all other supervisors as defined in
Section 2(11) of the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has
been the exclusive bargaining representative of the
employees in the aforesaid appropriate unit within
the meaning of Section 9(a) of the Act.
5. By failing to provide the Union with its
average cost per Leominster bargaining unit employ-
ee per hour for the life insurance, accident and
sickness insurance, long term disability insurance,
and the pension program; and by refusing to furnish
the Union with employees' average cost per hour for
the aforementioned benefit plans, Respondent has
failed to bargain collectively with the Union and has
entitled to take vacation time as a credit against time lost for any other
reason [emphasis supplied i." Similar limiting language is absent from the
contract in the present case. Thus, under the contract, Respondent could
have legitimately refused to allow an employee to forgo time off from work
and receive vacation pay as well as his or her normal pay; this is not to say,
however, that this contractual provision gave Respondent a proper basis for
dictating how time off from work should be spent. Nor should we assume
that Respondent bargained for and achieved such a "nght," as our
dissenting colleague does, in the absence of any evidence to this effect. Such
an unfounded assumption is even more questionable when, as in this case,
the result is to inhibit the free exercise of the fundamental right to strike.
984
BORDEN, INC., BORDEN CHEMICAL DIVISION
thereby engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
6. By refusing to furnish the Union with the
amount of dividends received by Respondent from
the Metropolitan Life Insurance Company, from the
life insurance, accident and sickness insurance, and
long term disability insurance plans covering Leo-
minster bargaining unit employees and how Respon-
dent distributed the aforementioned dividends, Re-
spondent has failed to bargain collectively with the
Union and has thereby engaged, and is engaging, in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
7. By refusing to provide the Union with request-
ed cost information on the Blue Cross-Blue Shield
benefit program and by failing to provide an accu-
rate figure on the number of bargaining unit employ-
ees participating in this program, Respondent has
failed to bargain collectively with the Union and has
thereby engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(5) and
(I) of the Act.
8. By refusing to confer accrued vacation benefits
upon employees eligible for such benefits upon
request because of their protected strike activity,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
9. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
REMEDY
Having found that Respondent engaged in unfair
labor practices in addition to those found by the
Administrative Law Judge, we shall order Respon-
dent to cease and desist therefrom and take the
additional affirmative action necessary to effectuate
the purposes of the Act.
We have found in addition to those violations
found by the Administrative Law Judge that the
failure to supply the Union with information regard-
ing Respondent's and employees' average costs for
certain benefit programs and costs for the Blue
Cross-Blue Shield program and the number of
participants therein constitutes violations of Section
8(a)(5) and (1) of the Act. We shall therefore order
that Respondent furnish this information as this
information relates specifically to the Leominster
facility. By way of clarification, the remedy for the
violations of Section 8(a)(5) and (I) of the Act found
by the Administrative Law Judge which arose out of
Respondent's refusal to provide information on the
dividends derived from certain benefit programs also
requires the furnishing of information relating specif-
ically to the Leominster facility.
We have also found that certain employees, includ-
ing employee Donald J. Collette, were denied ac-
crued vacation benefits when requested in violation
of Section 8(a)(3) and (1) of the Act. We shall
therefore order that Donald J. Collette be paid his
vacation pay, with interest thereon to be computed in
the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977), and that the remaining
employees receive interest on their vacation pay to
compensate them for the loss of the use of their
money during the period that this money was
unlawfully withheld.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Borden, Inc., Borden Chemical Division, Leomin-
ster, Massachusetts, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to provide the Union information
regarding Respondent's average cost per Leominster
bargaining unit employee per hour for life insurance,
accident and sickness insurance, long term disability
insurance, and the pension plans; and refusing to
furnish the Union with information regarding em-
ployees' average cost per hour for these same benefit
programs.
(b) Refusing to furnish the Union with the amount
of dividends received by Respondent from the
Metropolitan Life Insurance Company, from the life
insurance, accident and sickness insurance, and long
term disability insurance plans covering Leominster
bargaining unit employees and how Respondent
distributed the aforementioned dividends.
(c) Refusing to provide the Union with the request-
ed cost information on the Blue Cross-Blue Shield
program and failing to provide an accurate figure on
the number of bargaining unit employees participat-
ing in this program.
(d) In any like or related manner refusing to
bargain with the Union as the collective-bargaining
representative of the employees in the appropriate
unit, or interfering with, restraining, or coercing
employees in the exercise of rights guaranteed under
Section 7 of the National Labor Relations Act, as
amended.
(e) Withholding vacation benefits, or in any other
manner discriminating against its employees in re-
gard to hire or tenure of employment, or any term or
condition of employment, to encourage or discour-
age membership in any labor organization.
985
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Furnish the Union with the information it
requested regarding Respondent's average cost per
Leominster bargaining unit employee per hour for
the life insurance, accident and sickness insurance,
long term disability insurance, and the pension plans.
(b) Furnish the Union with the information re-
quested regarding average employee costs for the
above benefit programs.
(c) Furnish the Union with the amount of divi-
dends received by Respondent from the Metropoli-
tan Life Insurance Company, from the life insurance,
accident and sickness insurance, and long term
disability insurance plans covering Leominster bar-
gaining unit employees and the manner in which
Respondent distributed these aforementioned divi-
dends.
(d) Furnish the Union with the number of bargain-
ing unit employees participating in the Blue Cross-
Blue Shield benefit program and the requested cost
information.
(e) Make Donald J. Collette, and any other
employees eligible for extra vacation time, whole for
refusing to pay accrued vacation benefits on demand
in the manner set forth in the section of this Decision
entitled "The Remedy."
(f) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, personnel records, and all other
records necessary to analyze the amount of moneys
due under the terms of this Order.
(g) Post at its plant in Leominster, Massachusetts,
copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the
Regional Director for Region I, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER PENELLO, dissenting in part:
T In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
s All subsequent dates herein are in 1976 unless otherwise indicated.
I agree with my colleagues' decision in all respects
except that I would find, for the reasons stated by the
Administrative Law Judge, that Respondent did not
violate Section 8(a)(3) by postponing payment of
vacation benefits until after the expiration of the
contractual vacation period.
This issue concerns a small group of employees
who had accrued more than 2 weeks' vacation as of
June 1, 1976.8 All of Respondent's employees were
on vacation for 2 weeks in July and received vacation
pay. Under the parties' collective-bargaining agree-
ment, those employees who were entitled to an
additional week of vacation were required to sched-
ule it during the period of June I to December 15.
The contract also provided that "[e]xcept where the
Company and Union determine otherwise in individ-
ual cases, employees shall not be paid vacation pay
in lieu of vacation."
On September 30 the contract expired, and on
October I the Union called a strike which continued
until January 30, 1977. In early October, the Union
requested that Respondent pay all accrued vacation
benefits to employees who had not taken the addi-
tional week of vacation. Respondent refused on the
ground that, until the contractual vacation period
expired on December 15, it was under no obligation
to pay vacation benefits in lieu of employees'
actually taking vacations. It is undisputed that on
December 26 Respondent did in fact pay the
vacation benefits.9
As stated by the Administrative Law Judge, noth-
ing in the record suggests that Respondent's conduct
in postponing payment of vacation benefits was
motivated by union animus. Nor is this a situation
where employees were entitled to vacation pay
without taking actual vacations. Rather, the contract
specifically provided that "employees shall not be
paid vacation pay in lieu of vacation." Under these
circumstances, the Administrative Law Judge cor-
rectly regarded G. C. Murphy Company, 207 NLRB
579 (1973), as controlling. The contract in that case
stated in almost identical terms that "an employee
shall not be paid in lieu of vacation." In G. C.
Murphy, the Board did not consider time spent "on
strike" as fulfilling the contractual requirement of
being "on vacation," and therefore held that the
employer's actions in withholding accrued vacation
benefits during the strike and rescheduling vacation
periods after the termination of the strike were not
violative of Section 8(a)(3).o1
9 The only employee who did not receive vacation pay was Collette, who
was discharged in November. Respondent contends that under the collec-
tive-bargaining agreement Collette lost whatever right he had to vacation
pay at the time of his termination. As noted by the majority in fn. 5, supra,
issues raised by Collette's discharge are not before us.
'o I am unable to follow Member Jenkins' reasoning that the contract
986
BORDEN, INC., BORDEN CHEMICAL DIVISION
The same result should obtain here where Respon-
dent did no more than exercise the rights it had
bargained for by withholding the benefits during the
contractual vacation period when the employees
were on strike and hence not on vacation. Thus, once
the contractual vacation period expired, Respondent
paid the accrued vacation benefits, even though the
strike was still in progress. This fact is hardly
consistent with the majority's finding that Respon-
dent acted "solely because employees were engaged
in protected strike activity." To the contrary, Re-
spondent's payment of the vacation benefits on
December 26 during the pendency of the strike
strongly supports the conclusion that its conduct was
dictated by the provisions of the collective-bargain-
ing agreement and therefore was not violative of
Section 8(a)(3).
clause in the instant case does not mean what it says it means because some
other contractual provision, which was present in G. C Murphy, is absent
here. Nor am I able to comprehend the majority's reference to the contract
clause in issue as granting employees vacation pay if they take "time off
from work." The truth of the matter is that the clause requires that
employees take "vacations," not merely "time off from work," in order to
receive vacation pay. While time spent on strike certainly qualifies as "time
off from work," G. C. Murphy teaches that time spent on strike is not
synonymous with time spent "on vacation." Not only law, but also logic
supports this position. As Respondent states in its brief:
A strike is not a period of rest and relaxation. A strike cannot be a
vacation. . . . (The majority's decision] totally overlooks the benefit to
the Company of having employees take a vacation in the sense of
having them take or have a period of rest and relaxation. .... There is
nothing in the National Labor Relations Act which would prohibit a
contractual provision such as is present in this case requiring not only
pay, but a period of vacation.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to provide the Union
information regarding our average cost per Leo-
minster bargaining unit employee per hour for the
life insurance, accident and sickness insurance,
long term disability insurance, and the pension
plans.
WE WILL NOT refuse to provide the Union
information regarding employees' average costs
per hour for the life insurance, accident and
sickness insurance, long term disability insurance,
and the pension plans.
WE WILL NOT refuse to furnish the Union with
the amount of dividends received by us from the
Metropolitan Life Insurance Company from the
life insurance, accident and sickness insurance,
and long term disability insurance plans covering
Leominster bargaining unit employees and how
we distributed the aforementioned dividends.
WE WILL NOT refuse to provide the Union with
the requested cost information on the Blue Cross-
Blue Shield program and the number of bargain-
ing unit employees participating in this program.
WE WILL NOT in any like or related manner
refuse to bargain with the Union as the collective-
bargaining representative of the employees in the
appropriate unit, or interfere with, restrain, or
coerce employees in the exercise of rights guaran-
teed under Section 7 of the National Labor
Relations Act, as amended.
WE WILL NOT withhold vacation benefits, or in
any other manner discriminate against employees
in regard to hire, tenure of employment, or any
term or condition of employment, to encourage or
discourage membership in any labor organiza-
tion.
WE WILL furnish the Union with the informa-
tion it requested regarding our average cost per
Leominster bargaining unit employee per hour for
the life insurance, accident and sickness insur-
ance, long term disability insurance, and the
pension plans.
WE WILL furnish the Union with the informa-
tion requested regarding average employee costs
for the life insurance, accident and sickness
insurance, long term disability insurance, and the
pension plans.
WE WILL furnish the Union with the amount of
dividends received by us from the Metropolitan
Life Insurance Company, from the life insurance,
accident and sickness, and long term disability
insurance plans covering Leominster bargaining
unit employees, and the manner in which we
distributed these aforementioned dividends.
WE WILL furnish the Union with the number of
bargaining unit employees participating in the
Blue Cross-Blue Shield benefit program and the
requested cost information.
WE WILL forthwith pay to Donald J. Collette
accrued vacation benefits with interest thereon,
and WE WILL pay to employees whose accrued
vacation benefits were withheld interest thereon
to compensate them for the loss of the use of their
money during the period of time that this money
was unlawfully withheld.
BORDEN, INC., BORDEN
CHEMICAL DIVISION
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge: The
consolidated complaint which issued on December 14,
1976, alleges that Borden, Inc., Borden Chemical Division
987
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(herein Borden or Respondent), discriminated against its
employees by refusing upon request to pay striking em-
ployees their accrued vacation benefits under a recently
expired collective-bargaining agreement because they assis-
ted Local No. 553, International Chemical Workers Union
(herein the Union), or engaged in other concerted activities
for the purpose of collective bargaining or other mutual aid
and protection, and that it refused to bargain with the
Union by refusing to furnish the Union certain requested
information. Borden filed an answer to the complaint in
which it admitted the jurisdictional allegations, the appro-
priateness of the unit, and that certain named individuals
were agents and supervisors within the meaning of Section
2(11) of the Act, but denied the commission of any unfair
labor practices. All parties were represented by counsel at
the hearing, and the General Counsel and Respondent filed
posttrial briefs which have been duly considered.
Upon the entire record, my observation of the witnesses
and their demeanor, and the briefs filed herein, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New Jersey corporation, maintains an
office and place of business at 511 Lancaster Street in the
city of Leominster, Massachusetts, where it is engaged in
the manufacture, sale, and distribution of chemicals and
related products. In the course and conduct of its business,
Respondent annually ships from its Leominster facility
chemical products valued in excess of $50,000 directly to
points located outside the Commonwealth of Massachu-
setts.
Upon these admitted facts, I find that Borden has been
at all times material herein an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Local No. 553,
International Chemical Workers Union, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACrICES
A. The Facts
I. The alleged refusal to furnish information
The Union, for some time, has been the collective-
bargaining representative of the production, maintenance,
shipping, and trucking employees at the Borden facility in
Leominster.' The most recent contract covering the em-
ployees in the bargaining unit expired at midnight on
September 30, 1976.2 In anticipation of the contract's
expiration, the parties began negotiating in August. At the
I In its answer Respondent admitted the appropriateness of the unit as
set forth in the complaint.
2 Unless otherwise specified all dates refer to 1976.
3 At the hearing the parties agreed that certain information would be
furnished by Respondent to the Union by the close of business on March 1,
hearing the parties stipulated, and I find, that during the
course of one or more negotiating sessions which occurred
in August, September, October, November, December, and
January 1977, the union negotiators requested that Re-
spondent furnish the following information:
A. Respondent's average cost per Leominster bar-
gaining unit employee, per hour, for the following
benefits:
Number i, life insurance;
Number 2, accident and sickness insurance;
Number 3, long term disability insurance;
Number 4, pension.
B. Average cost to Leominster bargaining unit
employees per hour for the above-enumerated benefits.
C. The amount of dividends received by Respon-
dent from the Metropolitan Life Insurance Company,
from the life insurance, accident and sickness and long
term disability insurance plans.
D. How Respondent distributed the aforemen-
tioned dividends.3
Donald J. Collette, the president of the Union and the
chief negotiator for the Union, testified, and the record
reflects, that in addition to the information listed above, at
one or more of the bargaining sessions between August and
January 1977, there were discussions about the Blue Cross-
Blue Shield benefit plan. From the testimony of Collette, it
is not clear whether the Union sought the cost of the total
premium as paid by Borden, that is, the total premium per
family and per individual, or whether the Union was
seeking only the cost to the employees.4 It is clear that as to
this benefit plan the Union also requested the number of
employees enrolled in the plan.
Collette also testified that the Union requested informa-
tion on the number of employees participating in each of
the other benefit plans, as they were all voluntary.
Respondent denies that this request was ever made.
Collette testified that the Union never received the
requested information from Borden concerning the life
insurance, accident and sickness insurance, long term
disability insurance, and pension plan in the form request-
ed. He testified, and the record reflects, that Borden did
furnish so-called corporate costs on each such benefit plan.
Collette further testified, and the record reflects, that
Borden never furnished any information about employee
costs on any of the benefit plans. Borden contends that it
had no obligation to furnish this information because the
Union already had such information in its hands.
Allen Brerning, the regional labor relations manager for
the northeast area of Borden, credibly testified that he was
present at the negotiating sessions from August until
January 1977. He testified that during these negotiations
the Union did ask for average company costs for the
bargaining unit at the Leominster facility, and that the
Union also asked for the average employee costs for the
same fringe benefits. He testified that at none of these
1977, which agreement brought about an amendment to the complaint to
delete items 4 and 5 under par. 12(a) of the complaint.
4 The contract provides that Borden will pay 75 percent and the
employees 25 percent of the cost of this benefit.
988
BORDEN, INC., BORDEN CHEMICAL DIVISION
meetings did the Company ever discuss the number of
employees participating in any of these fringe benefit plans,
nor did the Union ever request from the Company the
number of employees participating in any of these plans
with the exception of the Blue Cross-Blue Shield plan.
Brenning testified that at the September 8 meeting they
presented to the Union the company costs for the benefits
of the Borden programs at the Leominster location; that
after these costs were presented Collette asked where are
the employee costs; and that Dick Anderson, another of
Respondent's negotiators, responded, "Those cost figures
are in the booklets for the programs," to which Collette
replied, "Yeah, I can figure that out." Brenning testified
that each booklet providing the coverage for the various
programs has a section which describes the cost to the
employee. He stated that every employee has these books
available to him, and the Union could readily determine
how much the employees were paying for these fringe
benefits. Brenning stated that in subsequent meetings
Collette nevertheless continued to press for the employee
costs, and, notwithstanding the fact that he could deter-
mine this for himself, Collette insisted that the Company
do it for him.
Brenning stated that they made it clear to the Union that
the cost items they gave them represented the average
company costs for the benefits that the Leominster employ-
ees had. He stated that other employees in other bargaining
units in other locations participate in these same so-called
Borden benefit programs to the extent that they had
negotiated a similar plan, and that the costs which they
presented to the Union was the average costs for all the
employees participating in that benefit plan, including the
ba.gaining unit at Leominster. Therefore, the Company
figures the average corporate cost per employee on a
corporate basis, and it is not limited to any particular unit.
He testified, however, that the cost items they gave the
Union would be the exact cost items that would apply to
the Leominster unit. Brenning repeatedly told Collette this
during negotiations, and he said there was never doubt as
far as they were concerned that Collette understood exactly
what they were talking about.
Brenning testified that Borden wanted to make certain
that the Union understood they did not keep cost figures
for any particular unit, and that the Leominster unit is not
isolated from some plant in California which has exactly
the same benefits. Brenning testified that when Borden
presented these costs to the Union they never questioned
these company costs. The challenge came when they did
not get the employee costs, and it is his understanding that
that is what prompted the current Board charge. Brenning
stated that it was his understanding that these were the
only figures available, and that these corporate costs
presented to the Union did not include any bargaining unit
that had a different contribution level for the same benefit.
These corporate costs apply only to bargaining units with
the same contribution arrangement, the same benefit level,
and the same plan; and any bargaining unit that had a
different contribution level would not be included in these
corporate figures presented to the Union.
At the time of the hearing, Borden and the Union were
operating under a memorandum of agreement.
2. Respondent's refusal to pay vacation pay
The collective-bargaining agreement between Respon-
dent and the Union which was to expire on September 30
contained the following provisions relating to vacations:
ARTICLE XIXII
VACATIONS
Section I
Annual vacations with pay will be granted to
employees as follows:
(a) Each employee with one (1) year of continuous
employment or mole immediately preceding June 1 of
the current year will be granted two (2) weeks' vacation
with pay.
(b) Any employee having less than one (1) full year,
but more than six (6) months of continuous employ-
ment immediately preceding June I of the current year
will be granted one (1) week's vacation with pay.
(c) Each employee with eight (8) years or more of
continuous employment by December 31 of the current
year will be granted three (3) weeks' vacation with pay.
t * *
Section 3
Except where the Company and Union determine
otherwise in individual cases, employees shall not be
paid vacation pay in lieu of vacation.
Section 6
(a) Except when the Company closes for the vacation
period, the Company will permit employees to take
vacations between June I and December 15 when to do
so will not create an abnormal financial burden upon
the Company or render the operation of the plant
unduly hazardous or difficult.
(b) When the Company closes for the vacation
period, the vacation period will be between June 15 and
Labor Day.
As can be seen from the above provisions, some
employees get more than 2 weeks' vacation. As set forth in
the contract, the company practice is to shut down for
vacations between the period June 15 and Labor Day. In
July, in accordance with section 6 of the contract, the
Company scheduled a period for vacations which was 2
consecutive weeks. By the time the contract expired on
September 30, 1976, all of the employees had taken their
vacation with the exception of those who were entitled to
more than 2 weeks.
Collette testified, and the record is clear, that in the past
it has been the practice of the Company to allow employees
with additional weeks vacation to schedule them through
December, and that if there was a conflict on weeks to be
taken it was normally handled through seniority. It is also
clear from the contract and past practice that employees
989
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are always compelled to take their vacation, and that they
could not be paid vacation pay in lieu of taking the
vacation. Collette testified that the only time an employee
was allowed to work and receive his vacation pay that he
was aware of was in relation to a man who had been out on
accident and sick benefits, and when he returned the
Company asked the Union if they would waive the
requirement in the contract and allow the man to work and
be paid his vacation pay at the same time. The Union
agreed to waive this provision. Collette had an additional
week's vacation coming to him, and according to his
testimony he had originally planned to take that vacation
in December, but when it appeared that the negotiations
would extend beyond the expiration date of the contract he
informed Gibbons, his foreman, that he desired to take his
vacation in the first week of October. This rescheduling of
the vacation was corroborated by Sam Bland, an employee
who was working beside Collette at the time he notified
Gibbons of his intention to change his vacation date. Bland
also testified that he had scheduled his third week of
vacation to be the first week in October, and that on
September 29, a Wednesday, he received his vacation pay
along with his regular pay.
The contract expired on September 30, and, on October
1, the Union called a strike which continued until January
30, 1977. The parties stipulated that certain of the unit
employees, including Collette, had accrued vacation eligi-
bility which had not been taken as of the time the strike
began, and that, on October 7, a request for payment of all
accrued vacation benefits was made by Collette to the
personnel services manager, Blackman. On October 7,
Blackman denied the request and no vacation pay was paid
to any of the striking employees until on or about
December 26. Respondent paid all accrued vacation pay
due and owing, with the exception of that accrued by
Collette. The General Counsel contends that the failure of
Respondent to pay vacation pay to the striking employees
was a violation of Section 8(a)(3) and (L) of the Act, and
that Respondent should pay the 1 week's vacation pay to
Collette with interest at 6 percent. 5 The parties have
stipulated that all vacations accrued as of June 1. The
General Counsel concludes that once the vacation pay has
accrued then it is payable upon demand or at the
expiration of the contract. Respondent, on the other hand,
argues that the vacation can only be taken in accordance
with the collective-bargaining agreement between the
parties which provides that vacation pay cannot be paid in
lieu of the employee's taking his vacation.
Thus, Respondent argues that, until the contract vaca-
tion period expired on December 15, it was under no
obligation to pay vacation pay in lieu of the employees'
actually taking vacation as set forth in the contract.
Discussion and Conclusions
As indicated above, the record clearly establishes that
the Union requested Borden to furnish company costs on
I In November, Respondent discharged Collette allegedly for cause.
That discharge along with backpay is a separate proceeding based on
another complaint. Additionally, it is my understanding that that discharge
is also the subject of an arbitration proceeding between the parties. It is
certain benefit plans and the average cost to the bargaining
unit employees.
Union President Collette testified that the Union needed
these costs in order to negotiate with the Company in that
they were requesting increased benefits in these areas. It is
my conclusion that the requested material was necessary to
the Union's function as the bargaining representative. 6
The Company furnished cost figures on life insurance,
accident and sickness insurance, long term disability
insurance, and pensions. These costs, however, were on a
corporate basis and not limited to the Leominster bargain-
ing unit. The Company explained that it did not keep cost
figures limited to the Leominster bargaining unit but only
on a corporate basis; that these figures reflected the
corporate costs for every individual included in the plan;
and that the plan would not necessarily be limited to the
Leominster bargaining unit, but would encompass every
bargaining unit that had a similar plan. The Company's
negotiator, Allen Brenning, credibly testified that they
explained to the Union that they did not keep these figures
on any basis other than a corporate basis, and that the
corporate costs given would apply to the Leominster
bargaining unit. It is my conclusion that the General
Counsel has failed to show that Borden, in fact, had the
cost figures as requested by the Union in the form
requested by the Union, and, therefore, it is my conclusion
that the Company has satisfied its bargaining obligation in
this regard by giving the Union the information it request-
ed in the only form in which it had that information
available.
The complaint also alleged a refusal to bargain on the
part of the Company for its failure to furnish the average
employee cost per hour in the Leominster bargaining unit.
There is no doubt that the Union requested this informa-
tion, and that the Company refused to furnish this
particular information. However, Borden referred the
Union to the booklets that provide these benefits which
were available to every employee and the Union and which
set forth the amounts of contributions to be made by the
employees. Brenning testified that they informed the
Union that this information was contained in the booklets,
and that the Union could easily calculate the employee
costs. Thus, it appears that the Union wanted the Compa-
ny to calculate the cost for it, rather than to check the
booklets and do it itself. I am aware that the availability of
other sources of information does not relieve the employer
of its obligation to furnish the information. However, I do
not regard the fact that the Union already had the
information in its hands as being another source within the
meaning of Board cases. I do not believe that the law
requires an employer to calculate the cost of a given item
for a union where the union has that information readily
available if it so desires to calculate it itself. Therefore, it is
my conclusion that the Company has not violated Section
8(a)(5) in refusing to furnish to the Union the average cost
per bargaining unit employee for the benefit plans set forth
above.
clear, however, that the alleged discharge of Collette is not pending before
this Administrative Law Judge.
6 I make the same finding with respect to all material requested during
the negotiations, whether it was furnished or not.
990
BORDEN, INC., BORDEN CHEMICAL DIVISION
The record reflects, and I find, that the Union requested
the Company to furnish the costs relating to certain
premiums of the Blue Cross-Blue Shield hospitalization
plan. The record also reflects that Borden did not supply
this information to the Union. The contract provides that
the Company will bear 75 percent of the cost of the
premium, and that the employee will pay the remaining 25
percent. It is obvious that the Union could very easily fimd
out the cost of the premium to an employee by looking at
the pay stub of any employee who had a family plan and
the pay stub of any employee who had an individual plan.
Collette admitted that as this was taken out of his pay and
does show on his pay slips he could determine the cost in
his own case within a few cents on the family plan.
Once it had obtained the cost to the employee, the Union
could thereby calculate the company cost and the overall
cost by simple mathematics. For example, if the employee's
25 percent amounted to $2.50 weekly, then the Employer's
contribution would be $7.50, and the total premium $10.
Again, I do not believe that the law requires an employer to
calculate the figures for a union when the union has these
figures readily available and can do its own calculations.
Therefore, it is my conclusion that the Company has not
violated Section 8(aX)(5) in refusing to furnish the cost
information requested on the Blue Cross-Blue Shield plan.
Collette further testified that the Blue Cross-Blue Shield
insurance policy covered only the employees at Leomin-
ster, and that at the last meeting the Company gave them
the information that there were 136 employees covered by
the Blue Cross-Blue Shiled plan. He also testified that at
the time of the strike there were 134 people in the
bargaining unit.7 Thus, it would appear that Borden
supplied the requested information as to number of
employees involved, and that all the bargaining unit
employees were covered under the Blue Cross-Blue Shield
plan.
The parties stipulated, and I find, that the Union
requested from Respondent any amount of dividends
received by Respondent from the Metropolitan Life Insur-
ance Company from various insurance and disability
programs it has with Metropolitan Life, and how Respon-
dent distributed the aforementioned dividends. The record
reflects, and I find, that Respondent did not furnish this
information. Respondent does not question the relevancy
of this request but states merely in its brief that the
dividends, if any, received by the Company were not
limited to the Leominster policy, but that any dividend
would be for the total corporate policy and as a practical
matter would be extremely difficult to allocate to this small
Leominster group. I find that this information was certain-
ly relevant to the contract negotiations. Knowledge of any
dividend could very easily result in negotiations which
would either increase the amount of insurance or decrease
the amount of premiums paid by the employees. This
certainly would be relevant to the bargaining. In the 1974
negotiations, the Company, in responding to a similar
request, indicated that in the year 1973 a $300,000 dividend
7 Apparently two nonbargaining unit employees were also covered by
this plan.
s In this connection, I have credited the testimony of Brenning on all
major items of conflict because Brenning struck me as a more straightfor-
for life insurance, AS/ADD and hospital-surgical-major
medical was paid. The Company also informed the Union
that this amount of money, however, was used to offset
forward accruals of losses for LTD in the amount of $1.2
million. Certainly, such a large dividend could be benefi-
cial to the Union in future negotiations.
It is therefore my conclusion that Respondent has failed
in is obligation to bargain by refusing to furnish the
requested information concerning dividends and any distri-
bution thereof.
This leaves us with the remaining contention by the
Union that it requested during the negotiations the number
of employees participating in the various programs or
benefit plans. The Company denies that any such request
for employee figures was ever made. Allen Brenning
testified that at no time did the Union make any request for
the number of employees participating in any of the benefit
programs other than the number of employees participat-
ing in the Blue Cross-Blue Shield health insurance pro-
gram. Although Union President Collette repeatedly testi-
fied that at various negotiating sessions he requested the
Company to supply the information on the number of
employees participating in the various programs, as indi-
cated, Brenning repeatedly denied that any such requests
were made. It is noted that the complaint does not contain
any allegation regarding this alleged request. It is my view
that, if such a request had been made, Collette would have
informed the Region of this fact, and it certainly would
have been included in the complaint. It appears to me that
this may well have been an afterthought on the part of
Collette. In any event, I credit the testimony of Brenning in
this regard, and it is my conclusion that a request for this
information was never made upon Borden; therefore, it
could not have refused to furnish it.8
The Refusal to Pay Accrued Vacation Benefits
There is no doubt, and I find, that following the
expiration of the contract the Union requested Respondent
to pay vacation pay to all employees who had any vacation
benefits due them. To honor this request would be paying
vacation pay in lieu of vacation. Because the employees at
that time were on strike, the Company refused to pay any
vacation benefits. The record reflects, and I find, that in
the latter part of December, following the normal vacation
period, Respondent paid the accrued vacation pay to
employees who had any remaining benefits coming to
them.
The General Counsel contends that the failure to pay
vacation pay to employees who were on strike was done
purely because these employees were assisting the Union in
their strike activity and clearly a violation of Section
8(aX3). In support of this position, the General Counsel
relies upon N.LR.B. v. Great Dane Trailers, Inc., 388 U.S.
26 (196%7); and Allied Industrial Workers, AFL-CIO, Local
Union No. 289 [Cavalier Div. of Seeburg Corp. and Cavalier
Corp.] v. N.L.RB., 476 F.2d 868 (C.A.D.C., 1973), enfg.
192 NLRB 290.
ward and forthright witness, and his testimony had the nng of truth. The
testimony of Collette. who certainly is not a disinterested witness, did not
have such a ring of truth. To the extent that there is any conflict on major
points, I have credited Brenning over Collette.
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the Great Dane case the company refused to pay
accrued vacation benefits to striking employees while
announcing its intention to pay such benefits to nonstrik-
ing employees, which it subsequently did. The Court held
that there was little question but that the result of the
company's refusal to pay vacation benefits to strikers was
discrimination in its simplest form; and that such discrimi-
nation was inherently destructive of important employee
rights; and, where this can reasonably be concluded, no
proof of an antiunion motivation is needed, and the Board
can find an unfair labor practice, even if the employer
introduces evidence that the conduct was motivated by
business considerations. This case does not appear to be
applicable to the present situation. Here, there is no
evidence that Respondent paid the vacation benefits to
nonstriking employees while refusing to pay the same
benefits to striking employees. As a matter of fact, the
record does not indicate whether all the employees went on
strike or whether some of the employees continued to work
during the strike period. Moreover, the complaint makes
no allegation of such disparate treatment.
In the Allied Industrial Workers case the company had
posted a notice stating that employee vacations would be
taken during the first 2 weeks in August. This notice was
posted pursuant to the terms of the collective-bargaining
agreement which further provided that employees would be
entitled to vacation pay each year in lieu of an actual
vacation. The vacation period was required to fall between
June 15 and September I of each year. The collective-
bargaining agreement expired on July 13, 1969, and on July
21, 1969, the employees went on strike. By letter dated July
28, 1969, the company indicated that it had decided to
delay commencement of vacations because of intervening
events over which it had no control. At the next bargaining
session, which was held on July 31, the union raised the
topic of vacation pay. The company responded that no
vacations could be scheduled until after the strike, and that
the matter of vacation pay would have to be decided later.
The union pressed the issue at the next bargaining session
held on August 5, asserting that the company had a legal
obligation to give the employees their vacation pay. The
company responded that it "is not legally obligated to
subsidize the strike." Finally, on August 11, the company
officials confronted with the same demand replied that
"We are not going to pay the vacation pay until the strike is
over." On October 30, 1969, the company paid the vacation
pay to both working and striking employees. The court
held that it is beyond dispute that vacation pay would
accrue and become due and payable in lieu of actual
vacation. The question presented was whether it had
accrued prior to October 30, the time at which the
company made the actual payment, thereby rendering the
company's refusal to pay after the union's demands
potentially violative of Section 8(a)(3). The court held that
the employees' rights to vacation pay in lieu of actual
vacation did accrue prior to October 30, 1969, and that the
refusal to pay the vacation pay was violative of Section
8(a)(3). As the facts in this case indicate that vacation pay
could accrue and become due and payable in lieu of actual
vacation taken, it would seem this case is not dispositive of
the issues involved herein; for Borden contends, and the
contract specifically provides, that vacation pay shall not
be paid in lieu of taking a vacation. Thus, the Employer
argues that, although vacation eligibility had accrued as of
June 1, the vacation had to be taken, and that the
employees could not be paid vacation pay until after the
contractual vacation period.
The contract provides that when no vacation period is
scheduled, such as a 2-week shutdown, vacations shall be
taken between June 15 and December 15 of the calendar
year. Thus, the vacation period is June 15 through
December 15. Union President Collette testified that when
there is a 2-week shutdown for employee vacations, but
some employees are entitled to 3 or 4 weeks, they schedule
their vacations at any time up to December. It would
appear, therefore, that vacations not taken prior to Decem-
ber 15 have to be paid as they apparently are not
cumulative and cannot be carried over to the next year.
The instant case seems to be covered by G. C. Murphy
Company, 207 NLRB 579 (1973). In that case the union
established a picket line following a strike, and some 350
production and maintenance employees honored the picket
line. This picketing which began on August 28, 1972,
continued until September 28, when all employees returned
to work. On October 9, however, the office clerical
employees resumed picketing, and the production and
maintenance employees again honored the picket line. This
work stoppage continued until October 17, at which time
an agreement was reached covering the office clerical unit,
and all employees returned to work. The contract covering
the production and maintenance unit specifically establish-
ed a system for advance scheduling of vacations. In
accordance with that procedure in November 1971, the
production and maintenance employees made requests in
writing embodying their choice of vacation periods for the
coming year. All vacations for the year 1972 were sched-
uled well in advance of the strike. The prescheduled
vacations of certain production workers who refused to
cross the picket line in August, September, and October
1972, coincided with the strike. Shortly before the end of
the strike, the union requested that these employees be
given a lump sum vacation payment in lieu of time off with
pay. The employer refused, stating that upon cessation of
the strike vacations would be rescheduled. On the termina-
tion of the strike, this is precisely what occurred. The
employer followed the established procedures for selection
of vacation time, and the employees were awarded time off
with pay before the end of 1972.
In that case the Administrative Law Judge stated at 582:
The instant record is totally barren of credible
evidence suggesting union animus or hostility. Nor does
it appear that either through contract or practice ...
employees, whose scheduled vacation fell during peri-
ods when they were out of work for any reason, had an
opportunity of receiving vacation pay in lieu of a
rescheduled vacation with pay.... Indeed, the con-
tract. . . speaks specifically, and without ambiguity, to
the nonexistence of such an election.
After reciting the applicable provisions of the contract,
the Administrative Law Judge stated further at 583:
992
BORDEN, INC., BORDEN CHEMICAL DIVISION
It is clear from the foregoing that the contract does
not authorize vacation pay, but does require employees
to take their vacation benefits in the form of time off
with pay, and in no other form. .... I am satisfied and
find that Respondent, in rescheduling the vacations of
those whose vacations fell during the period of the
strike, acted accordingly to the procedure dictated by
the terms of the existing collective-bargaining agree-
ment.
Here, the Employer's actions apparently affected only a
small group of employees, those who were entitled to more
than 2 weeks' vacation. All employees had taken a 2-week
vacation in July and had been paid their vacation pay
while they were off work. As indicated previously, there
was no evidence in this case that there was any disparate
treatment between nonstriking employees and striking
employees. I am satisfied that the contract required, and
past practices dictated, that employees not be allowed
vacation pay in lieu of taking time off without mutual
agreement between Borden and the Union. In fact, Union
President Collette testified that this was true.
Under the circumstances of this case, I am convinced
that the principles enunciated in the G. C. Murphy case are
applicable here, and it is my conclusion that Respondent
has not violated Section 8(a)(3) and (1) in its refusal to pay
the vacation pay to its employees while they were on strike.
The General Counsel argues that had the employees
gone back to work prior to December 15 and requested
vacation pay, vacation pay would have presumably been
paid. There is no evidence in this record to indicate that
that would have been the case. As I indicated previously,
past practices dictate against such a finding. I am con-
vinced that Respondent was exercising its contractual
rights by withholding vacation pay until after December
15, the contractual period, and at that time paid the
vacation pay because vacations apparently cannot be
carried over to the following year. Here, because of the
strike, it was impossible for the employees to have
rescheduled their vacations and taken them in the calendar
year. As I find no discrimination in violation of Section
8(a)(3) and (1), I shall recommend dismissal of the
complaint in this regard.
IV. THE REMEDY
Having found that Respondent has engaged in conduct
violative of Section 8(a)(5) and (I), I recommend that
Respondent cease and desist from engaging in the unfair
labor practices found, and in any other like or related
conduct, and take certain affirmative action designed to
effectuate the policies of the Act. Having found that
Respondent has breached its statutory obligation by
refusing to furnish certain requested information, I recom-
mend that it be ordered to do so. The posting of an
appropriate notice is also recommended.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. Respondent Borden, Inc., Borden Chemical Divi-
sion, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local No. 553, International Chemical Workers
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All hourly production, maintenance (including boil-
erroom licensed foremen), and shipping employees, and
over-the-road truckdrivers of Respondent employed at the
Leominster works in Leominster, Massachusetts, and all
hourly laboratory technicians of Respondent employed at
511 Lancaster Street at the Leominster works in Leomin-
ster, Massachusetts, excluding all other employees such as
executives, supervisors, foremen, assistant foremen, office
employees, watchmen, guards, chemists, laboratory techni-
cians (60 Elm Hill Avenue), and professional employees,
and all other supervisors as defined in Section 2(11) of the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(a) of the Act.
5. By refusing to furnish the Union with the amount of
dividends received by Respondent from the Metropolitan
Life Insurance Company, from the life insurance, accident
and sickness insurance, and long term disability insurance
plans and how Respondent distributed the aforementioned
dividends, Respondent has failed to bargain collectively
with the Union and has thereby engaged, and is engaging,
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
993