Elmac Corp.

National Labor Relations Board - Board Decisions

Sep 7, 1976

225 N.L.R.B. 1188 (N.L.R.B. 1976)

1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elmac Corporation and United Steelworkers of Amer-
ica on Behalf of Local Union 8446, AFL-CIO. Case
6-CA-8860
September 7, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On July 14, 1976, Administrative Law Judge Abra-
ham Frank issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Elmac Corporation,
Bridgeport, West Virginia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
said recommended Order.
DECISION
ABRAHAM FRANK, Administrative Law Judge The charge
in this case was filed on December 18, 1975,! and the com-
plaint, alleging violations of Section 8(a)(1) and (3) of the
Act, issued on February 26, 1976. The hearing was held on
May 17, 1976, at Clarksburg, West Virginia. Briefs were
filed by the parties and have been duly considered.
The only significant issue to be resolved is whether Re-
spondent unlawfully denied its striking employees vacation
pay theretofore accrued to them. Respondent also con-
tended in its answer that the charge was not filed within 6
months of the alleged unfair labor practices. This conten-
tion was not renewed by Respondent at the hearing or in
its brief. I find Respondent's defense on this ground to be
without merit. I agree with the General Counsel that the
6-month limitation period dates from the time the employ-
ees on strike were entitled to receive, but were denied, their
vacation pay, a date after the end of June at the earliest
1 All dates are in 1975 unless otherwise specified
Respondent, a Delaware corporation with its principal
office in Huntington, West Virginia, is engaged in the busi-
ness of manufacturing and selling components for material
handling systems At times material to this complaint Re-
spondent maintained plants at Bridgeport, West Virginia,
the only plant involved in this proceeding, and at other
locations. In the year preceding issuance of the complaint
Respondent received in West Virginia goods valued in ex-
cess of $50,000 from points outside the State. Respondent
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
United Steelworkers of America and its Local 8446,
AFL-CIO, are labor organizations within the meaning of
the Act.2
On April 1, United Steelworkers staff representative, Lee
Goudy, received a call from Tom Davis, Jr., an employee
of Respondent, seeking information about membership in
the Union. Several days later Goudy met with Davis and
another employee, Warren Mullan. Goudy explained the
procedures to them and gave them cards to be distributed
to other employees authorizing the Union to represent
them for purposes of collective bargaining. On April 9, Re-
spondent permanently laid off about 25 employees. On
April 11, employees of Respondent went on strike On
April 14, the Union filed a petition for an election. Follow-
ing an election on June 17, the Union was certified by the
Board on July 10 as the collective-bargaining representa-
tive of the Respondent's Bridgeport employees. Thereafter,
the Union met with representatives of the Respondent, in-
cluding Counsel C. Robert Schaub, in a number of negoti-
ating sessions, beginning approximately the latter part of
July. On several occasions Goudy brought up the subject
of vacation pay. Goudy testified that Schaub stated that
the striking employees were not eligible for vacation pay
since work was available for them, but they had chosen to
remain on strike. When Goudy asked why the employees
who had been permanently terminated had received their
vacation pay, Schaub responded that they had been paid
their vacation pay because they were permanently termi-
nated. It was further stipulated by the parties that other
employees of the Respondent, who were on the active pay-
roll on June 30 received vacation pay. Generally, vacations
began about the last of June and extended through Decem-
ber. Vacation pay was paid by the Company when the em-
ployees received their regular pay check just before or just
after their vacation.
On November 24 Respondent notified the Union that
the plant would be closed.
Schaub's statements to Goudy were based on the
Company's existing policy with respect to vacation pay.
This policy in effect at least since 1971 had been revised on
June 1, 1972, and again on May 9, 1975, during the course
of the strike. Prior to May 9 the Respondent recognized
two categories of terminated employees for purposes of va-
cation pay:3 (1) those employees whose termination was
company initiated, and (2) those employees whose termina-
tion was employee initiated. Employees in both categories
were denied vacation payments if they were terminated be-
2 Also referred to hereinafter as the Union
J Memorandum entitled, "Approved Company Policies, Interpretations
and Regulations," G C Exh 2
225 NLRB No. 174
ELMAC CORPORATION 1189
tween July 1 and December 31. Employees in either cate-
gory who were terminated between January 1 and June 30
would be eligible for a prorated vacation payment of one-
twelfth of 40 hours for each complete month worked. Em-
ployees in category 2 would forfeit all rights to vacation
payment if they failed to give I week's notice.
On May 9 the Respondent put into effect a new and
substantially changed policy 4 with respect to the forfeiture
of vacation pay as follows:
VI. Forfeiture of Vacation Pay
To be eligible for vacation payment, an employee
must be on the active payroll as of the last day of the
vacation year (June 30)
Any employee who voluntarily leaves the employment
of the company during the vacation year, will forfeit
all vacation payment rights, except employees who
were on the payroll at July 1, who terminated after
January 1, and worked or agreed to work a two week
notice before leaving the Company's employment,
shall be paid on a pro-rated basis of one-twelfth eighty
hours for each month worked after July 1st.
The General Counsel contends that in refusing to pay
accrued vacation pay to the strikers while paying it to the
terminated employees and to other employees, who did not
strike, Respondent has discriminated against the strikers in
violation of Section 8(a)(3) and (1) of the Act.
Conceding that the April II strike was protected, con-
certed activity, the Respondent contends, nevertheless, that
it could lawfully deny its striking employees their earned
vacation pay because they were not on the active payroll
on June 30 and left the Company's employment without
giving 2 weeks' notice, as required by company policy.
I find no merit in the Respondent's contention The right
to strike is guaranteed in Sections 7 and 13 of the Act. It
does not fall into the category of a mere unexcused absence
subject to discipline or denial of benefits at the employer's
sole discretion.5 Where, as here, an employer has discrimi-
nated against striking employees because they were on
strike on a specific date, the application of such a company
policy must at a minimum be supported by "evidence of
legitimate and substantial business justifications." 6 The
burden of proof is on the Company.' The Respondent has
adduced no such evidence either with respect to its 2
weeks' notice requirement or the broader rule requiring
that an employee be on the "active payroll" as of June 30.
Indeed, the timing of the May 9 policy, less than a month
after the employees had gone on strike, the more restrictive
terms of that policy, coupled with Respondent's statement
to Goudy that the striking employees did not receive their
vacation pay because work was available for them but they
chose to remain on strike, is evidence preponderating in
Memorandum entitled "Approved Company Policies, Interpretations
and Regulations ," G C Exh 3
5The Frick Company, 161 NLRB 1089, 1108 (1966 ). enfd in pertinent
part 397 F 2d 956 (C A 3, 1968)
6 N L R B v Great Dane Trailers. Inc 388 U S 26 34 (1967)
lb,d
favor of a finding that Respondent's dental of vacation pay
to those employees was, in fact, motivated by their protect-
ed concerted activity, and I so find.
Moreover, in applying its policy the Respondent errone-
ously classified the striking employees as having voluntari-
ly left the Company's employment, without regard to the
provisions of Section 2(3) of the Act Under that section
employees on strike, with exceptions not here pertinent,
remain employees until they have obtained other regular
and substantially equivalent employment. Respondent
justified its payment of vacation pay to the terminated em-
ployees while denying such pay to the strikers on the
ground that the former had been "permanently terminat-
ed " However, the first sentence of paragraph VI, "Forfei-
ture of Vacation Pay," set forth above, makes no distinc-
tion between employees not on the active payroll as of
June 30. Clearly, as to this requirement, the terminated
employees were in no better position to receive their vaca-
tion pay than the strikers who went on strike several days
later These facts are additional support for the above find-
ing of Respondent's motivation.
Accordingly, I conclude that by withholding accrued va-
cation pay from its striking employees because of their pro-
tected concerted activity while granting such benefits to
other employees, including employees terminated by the
Company on April 9, the Respondent has violated Section
8(a)(1) and (3) of the Act with respect to each employee
named in the complaint. The aforesaid unfair labor prac-
tices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
I shall recommend that the Respondent be ordered to
cease and desist from its unfair labor practices and that it
make the vacation payments unlawfully withheld from the
striking employees with interest at 6 percent from July 29,
the date by which Respondent notified the Union that it
would not pay vacation pay to strikers 8 I shall also recom-
mend that the Respondent post an appropriate notice. In
view of the fact that the plant is closed, I agree with the
General Counsel that Respondent should be ordered to
mail a copy of the notices to each discriminatee at his last
known address, and I shall so recommend.
Upon the foregoing findings of fact and conclusions of
law and pursuant to Section 10(c) of the Act I hereby issue
the following recommended:
ORDER9
The Respondent, Elmac Corporation, its officers, agents,
successors, and assigns shall.
1. Cease and desist from.
(a) Discriminating against, interfering with, restraining,
or coercing its striking employees by withholding accrued
vacation pay from them because they have engaged in, or
8 Isit Plumbing & Heating Co, 138 NLRB 716 (1962), McCann Steel Com-
pany, Inc, 191 NLRB 299, 300 (1971)
9 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
declined to abandon, a strike protected by the National
Labor Relations Act.
(b) In any like or related manner discriminating against,
interfering with, restraining, or coercing its employees in
the exercise of rights guaranteed by the National Labor
Relations Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act'
(a) Make whole Brennis Bolton, Charles Campbell,
James Carder, Ralph Cathell, Sylvester Costilou, Ronald
Cunningham, Benson Davis, Thomas Davis, Terry Dillon,
Terry Dyer, Norman Fowler, John Gough, Forest Grose,
Kenneth Helmick, Walter Lewis, Cecil Littleton, Clifford
McGary, James McGary, John McGary, Kenneth Mc-
Gary, William Meade, Richard Moyer, Stanley Mullan,
Warren Mullan, Samuel Myers, Thomas Ravis, Paul Saltis,
Raymond Skidmore, Paul Strawder, Denver Taylor, Wil-
bur Utt, Clem Watkins, Larry Westfall, and Michael West-
fall for vacation pay withheld from them for the year 1975
together with interest thereon as provided hereinabove.
(b) Post at its plant in Bridgeport, West Virginia, and
mail to each of the aforenamed employees as provided
hereinabove, copies of the attached notice marked "Ap-
pendix." 10 Copies of said notice, on forms provided by the
Regional Director for Region 6, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customanly posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
n) In the event that the Board's 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full hearing in which both sides had the opportuni-
ty to present their evidence, the National Labor Relations
Board has found that we have violated the National Labor
Relations Act and ordered us to post this notice. We there-
fore notify you that'
WE WILL NOT discriminate against, interfere with, re-
strain, or coerce our striking employees by withhold-
ing accrued vacation pay from them because they
have engaged in, or declined to abandon, a strike pro-
tected by the National Labor Relations Act.
WE WILL NOT in any like or related manner discrimi-
nate against, interfere with, restrain, or coerce our em-
ployees in the exercise of rights guaranteed by the Na-
tional Labor Relations Act.
WE WILL make whole the following employees for
the vacation pay due and owing them for the year of
1975 with interest as provided in this Decision:
Brennis Bolton
Charles Campbell
James Carder
Ralph Cathell
Sylvester Costilou
Ronald Cunningham
Benson Davis
Thomas Davis
Terry Dillon
Terry Dyer
Norman Fowler
John Gough
Forest Grose
Kenneth Helmick
Walter Lewis
Cecil Littleton
Clifford McGary
James McGary
John McGary
Kenneth McGary
William Meade
Richard Moyer
Stanley Mullan
Warren Mullan
Samuel Myers
Thomas Ravis
Paul Saltis
Raymond Skidmore
Paul Strawder
Denver Taylor
Wilber Utt
Clem Watkins
Larry Westfall
Michael Westfall
ELMAC CORPORATION