Borden, Inc.Download PDFNational Labor Relations Board - Board DecisionsApr 20, 1978235 N.L.R.B. 982 (N.L.R.B. 1978) Copy Citation 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 Copy with citationCopy as parenthetical citation