Fort Pitt Steel Casting Division

National Labor Relations Board - Board Decisions

Sep 11, 1979

244 N.L.R.B. 970 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fort Pitt Steel Casting Division, Conval-Penn, Inc.
and United Steelworkers of America Local Union
No. 1406, AFI,-CIO. Case 6 CA- 11084
September 11, 1979
DECISION AND ORDER
BY CHAIRMAN FANNIN(; AND MFMBERS PENELI O
ANi) TRUESDAI.E
On June 7, 1979, Administrative Law Judge Abra-
ham Frank issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and General Counsel filed an an-
swering brief in support of the Administrative Law
Judge's Decision.
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, as
modified below, and to adopt his recommended Or-
der.
We agree with the conclusion of the Administrative
Law Judge that Respondent violated Section 8(a)(3)
and (I) of the Act by denying vacation pay to striking
employees, but we do so only for the reasons set forth
below.
We find that Respondent's purpose in withholding
vacation pay from its striking employees was to pun-
ish those employees for asserting their rights guaran-
teed under Section 7 of the Act and to undermine
employee support of the Union and of the strike. Sev-
eral weeks prior to the strike on March 3,2 Respon-
dent's representative informed the Union of the dates
for the customary midsummer 2-week plant shut-
down, during which employees normally took 2
weeks' vacation leave. Additional vacation time for
qualifying employees was to begin the week of Febru-
ary 27 according to a quota system whereby senior
employees had priority in choosing vacation weeks.3
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2All dates refer to 1978, unless otherwise specified.
Sec. 7 of the applicable collective-bargaining agreement states:
C. Scheduling of Vacations
I. Promptly after March I of each calendar year each eligible employee
shall be requested to specify the vacation period he desires. Vacations
will, as far as practicable, be granted at times most desired by employees
About a week before the strike, Respondent's repre-
sentative, Auretto, assured the Union's representa-
tive, Oblack, that, in the event of a strike, employees
would receive timely pay for their scheduled vaca-
tions. However, Respondent abruptly reversed its va-
cation policy on the eve of the strike and informed
the union representatives during the March 2 bar-
gaining session that all vacations would be resched-
uled at the end of the strike and that employees then
would be paid money in lieu of time off. When the
Union vigorously objected and insisted on a reason
for this policy, Auretto simply replied that Respon-
dent was not going to finance the strike.
At the time of the unfair labor practice hearing on
October 26. none of the employees who had been
scheduled for vacation since the onset of the strike
had received any vacation pay.
At the hearing, Respondent detailed its reasons for
initiating the new vacation policy during the strike.
Respondent explained that its actions were permissi-
ble under the contract and that it needed flexibility
either to maximize the work force available or to
avoid layoffs at the end of the strike. If the strike were
short, Respondent stated, more workers would be
needed at the end of the strike to handle the backlog
of work. However, Respondent's representative testi-
fied that as the strike wore on, orders would be lost.
necessitating layoffs upon termination of the strike in
order to reduce the work force. 4 By rescheduling va-
cations, employees would be placed on vacation
leave, rather than laid off, at the end of the strike.
Thus, Respondent explained, the vacation policy
would allow it to control the size of the post strike
work force while minimizing the number of layoffs.
We view these untimely explanations as contrived
and belated attempts to justify Respondent's unlaw-
ful activity. First, upon announcement of the vaca-
tion policy on the eve of the strike, the only reason
Respondent gave was that it did not want to "finance
the strike." This explanation was repeated during the
weeks following the onset of the strike. It was not
until the hearing that Respondent proffered the addi-
(longer service employees being given preferences as to choice); but the
final right to allot vacation periods and to change such allotments is
exclusively reserved to the Company in order to insure the orderly op-
eration of the plant: provided that vacations shall be scheduled, in the
absence of mutual agreement between local plant management and lo-
cal grievance committee to the contrary. between May I and October I
of each calendar year, or with the consent of the employee, at such other
time during the calendar year as may be agreeable to the plant Manage-
ment and employee.
4Respondent stated that it sought to avoid layoffs to reduce its contribu-
tions to unemployment compensation, minimize supplemental unemploy-
ment benefits, and lessen the loss of skilled employees to other employers.
However, in explicating the reasons for the vacation policy, Respondent
stated. in contrast, that employee insurance payments are continued during
vacation periods, but not during layoffs.
244 NLRB No. 161
970
FORT PITT STEEL CASTINGS
tional explanations outlined above. Second, Auretto
explained at the hearing that Respondent thought, at
the beginning of the strike, when the policy was an-
nounced, that it would not be a long strike and that
there would be a backlog of orders. However, Re-
spondent reacted to the anticipated short strike by
delaying payment of vacation benefits until employ-
ees terminated the strike. We are unable to discern
how depriving certain employees of timely vacation
pay during the strike would enable Respondent to
deal with a poststrike backlog more expeditiously. It
would not increase the size of the available post-strike
work force; it would serve only to harass and punish
those striking employees whose vacations had been
scheduled early in the strike.
Furthermore, as the strike continued, Respondent
explained, it appeared that the post-strike problem
would be a work force surplus caused by a drastic
reduction in orders. However, it was on June 27,
nearly 4 months after the onset of the strike, that Re-
spondent proposed applying vacation pay toward em-
ployee insurance payments during the strike, rather
than granting either time off or money in lieu of time
off at the end of the strike. This proposal is not in
accord with Respondent's contention that, as the
strike wore on, Respondent sought to avoid layoffs at
the end of the strike.
Finally, the continued withholding of accrued va-
cation benefits after the contractually established Oc-
tober I deadline exposes Respondent's claims of busi-
ness justification and reliance on the contract as
pretext. The record does not support Respondent's
claim of union abandonment of the October I date
nor the claim of impasse.
We find that the vacation policy announced on the
eve of the strike was in retaliation for the employees'
exercise of their Section 7 rights and was initiated for
the purpose of undermining employee support of the
Union and the strike. Such discriminatory action is
unlawful.5 Accordingly, we conclude that Respondent
has violated Section 8(aX3) and (1) of the Act by re-
scheduling vacations and withholding vacation pay
until the end of the strike.
except that the attached notice is substituted fr that
of the Administrative Law Judge.
APPENDIX
NoTICE TO EMPIOYEES
POSiTD BY ORDER OF HE
NAIIONAI. LABOR RELAIIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
United Steelworkers of America, Local Union
No. 1406, AFL-CIO. or any other labor organi-
zation, by discriminating against our employees
with respect to their vacation pay because they
engaged in protected concerted activity.
WE WILL.L NOT in any like or related manner
discriminate against, interfere with, restrain, or
coerce our employees in the exercise of rights
guaranteed them in the Act.
WE WIl.l make whole all of our employees for
vacation pay due them during the period of the
March 3, 1978, strike, with interest, as of the
dates vacations were originally scheduled for
these employees and payment withheld because
of their protected concerted activity.
FORT PITrr STEEL CASTIN(; DIVISION, CON-
VAL-PENN, IN(.
DECISION
ABRAIHAM FRANK. Administrative Law Judge: The
charge in this case was filed on March 21. 1978.1 and the
complaint alleging a violation of Section 8(a)(3) and (1) of
the Act issued on June 9. 1978. The hearing was held on
October 26. 1978. in Pittsburgh, Pennsylvania. All briefs
filed have been duly considered.
At issue in this case is the question whether Respondent
unlawfully withheld vacation pay for striking employees.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Preliminan' Findings and Conclusions
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Fort Pitt Steel Casting
Division, Conval-Penn, McKeesport. Pennsylvania,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
I Indiana & Michigan Electric Company. 236 NLRB 986 (1978).
Respondent, a New York corporation with facilities lo-
cated in various States, including a plant in McKeesport.
Pennsylvania, the only facility involved in this proceeding,
is engaged in the manufacture and nonretail sale of pressure
valves. Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
The Charging Party. hereinafter called the Union, is a
labor organization within the meaning of Section 2(5) of the
Act.
I All dates are in 1978. unless otherwise indicated.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Facts
The U nion and Respondent have been parties to a series
of collective-bargaining contracts, the latest of which ex-
pired on March 3. Unable to reach agreement on the terms
of a new contract, the Union struck on the latter date. At
the time of the hearing, the strike was still in effect.
On February 14, Frederick A. Auretto. the then director
of industrial relations, posted a notice to the employees to
the effect that the customary 2-week plant shutdown for
plant repairs and general vacation period was scheduled for
the weeks of July 31 and August 7. Apart from the normal
2-week vacation period, vacation scheduling for employees
is determined by assigning a quota for each department
based upon the number of weeks available for vacation.
The employees then select their weeks of vacation in order
of seniority.' The February 14 notice informed the employ-
ees that quotas by departments would begin the week of
February 27.
At the time of the hearing, none of the striking employ-
ees, whose vacation benefits had accrued and whose vaca-
tions had been scheduled between March 3 and the date of
the hearing, had been paid their vacation pay. Instead, Re-
spondent had decided not to adhere to the schedule of vaca-
tions theretofore established or to pay vacation pay to strik-
ing employees, but to reschedule their vacations at the end
of the strike.
Between the weeks of February 7 and 14, James Garry,
president of the Union, had a conversation with Auretto.
Garry requested that the scheduled plant shutdown be de-
layed because of the possibility of a strike. Garry took the
position that, in the event of a strike, the employees would
have to be paid their vacation pay. At that time, insurance
payments during the strike was a primary concern of the
employees. Garry told Auretto that Respondent would
have to pay insurance payments for the employees during
the full month they were on vacation because, under past
practice, vacation time was considered time worked.
Auretto informed Garry that the insurance payments
would probably be prorated to cover only the actual vaca-
tion weeks.
About a week prior to the strike, in answer to questions
of union members, Garry and Ernest Oblack, financial sec-
retary of the Union, informed members that it was the
Union's understanding that vacations would be paid as
they came due based upon past practice during a previous
strike.3 To confirm this understanding, Garry made a tele-
phone call to Auretto and told him the concern of the em-
ployees. He told Auretto that Oblack would speak to
Auretto on the matter of payments for insurance premiums
and vacations while the employees were on strike if the
Union struck. Oblack then spoke to Auretto. Auretto told
Oblack during this conversation that Respondent would
pay the employees their vacation pay for their scheduled
vacations in the event of a strike, but that Respondent
would only pay insurance for the actual weeks the employ-
ees were on vacation.
Some employees are entitled to more than a week or two of vacation.
During a stnke of about 6 weeks in 1973, strikers were paid their vaca-
tion pay by Respondent.
On March I and 2, Auretto, Respondent's chief spokes-
man, assisted by Joe Gest, the plant controller, and Dave
Todd. the manufacturing manager, held negotiating meet-
ings with the Union's staff representative, Mr. Scott, and
the full union committee, including Oblack and Garry.
At the March I meeting, the union representatives again
asked Auretto about vacation pay in the event of a strike.
Auretto said the employees would be paid their vacation
pay as scheduled. The union representatives then asked for
a letter to that effect so that they would have this assurance
in writing. Auretto replied that he would have a secretary
with him the next day, and the letter could be typed at that
time.
On March 2, while Auretto was engaged in negotiations
with the Union, James P. Spresser. vice president and gen-
eral manager of Respondent, after consultation with his su-
perior, Anthony J. Lestingi. vice president of operations.
decided not to follow the vacation pay schedule established
prior to the strike, but to reschedule the vacations at the
end of the strike. Spresser communicated this decision to
Auretto, informing the latter that Respondent needed flexi-
bility to handle the situation when the strike was over.
At the onset of the March 2 meeting, the union represen-
tatives asked Auretto for the letter he had promised them
the previous day, and he replied that they would get to that
later. During the noon break in the lobby of the HIoliday
Inn, the union representatives again pressed Auretto for the
letter. At this time. Auretto said that Respondent was not
going to finance the strike.4 About 5 p.m., when the union
representatives brought the question of the letter. Auretto
said that they would talk about that later.
About 9 p.m. that evening, when the union representa-
tives again raised the subject of the promised letter, Auretto
stated that Respondent would pay the employees money in
lieu of vacation at the end of the strike. The union represen-
tatives asked Auretto about their agreement that Respon-
dent would pay vacation pay during the strike to be incor-
porated in a letter to that effect. Auretto replied that
Respondent was not going to finance the strike.
Oblack also testified that within a week or two after the
beginning of the strike he mentioned to Auretto that
Oblack had not received his vacation pas, and Auretto re-
sponded that the Company was not going to subsidize a
strike. Garry also testified that about March 14, when he
met with Auretto and asked why the Company would not
pay vacation pay, as previously agreed. Auretto responded
that the Company was not going to finance a strike.
Auretto did not recall making more than one statement
of this nature. Both Oblack and Garry were clear and posi-
tive that these additional statements were, in fact, made. I
credit their testimony. Auretto was not, in my opinion, an
entirely open and forthright witness. I cannot accept his
4 Auretto indicated that he made such a statement in a jocular manner on
March I. Garry testified the statement was made on March 2. Oblack be-
lieved the statement was made on March 2, but was not positive. I credit
Garry. His recollection appeared to me to be clearer and more positive in
this respect. Moreover, as noted above, the decision by Respondent not to
pay vacation was made on March 2, not March 1. It would be unlikely that
Auretto would make a statement of this nature on March I. when, so far as
he was aware, Respondent intended to pay the employees their vacation pay
during the strike.
972
FORT PITT STEEL CASTINGS
testimony that, as chief spokesman for Respondent, he
merely gave the union representatives "his opinion" that
Respondent would pay vacation pay during the strike.
It is Respondent's practice to grant employees on sick or
accident insurance at the time of their scheduled vacations
the option of rescheduling their vacations or taking their
vacation pay. Employees on layoff status are not granted
this option. With respect to the latter employees. Respon-
dent's practice is to pay them their accrued vacation pay.
When the strike began, Respondent rescheduled vaca-
tions for nonstriking salaried employees, including clerical
employees and foremen, to require those with more than 2
weeks of accrued vacation time to take vacations during
March and April. As the strike progressed, more vacations
for salaried employees were rescheduled for earlier dates to
avoid layoffs. Layoffs, nevertheless, occurred. By the end of
May, 17 employees were laid off. In July, about 25 addi-
tional employees were laid off. At the time of the hearing
there were about 16 employees left in the plant.
On or about June 27, during a negotiating session with
the Union, John Wayman, then attorney for Respondent,
handed the union representatives a memorandum. The
memorandum proposed contract language relating to insur-
ance coverage for striking employees.' In a separate para-
graph, the memorandum raised the question of the "Cur-
rent Problem" with respect to vacation pay. The paragraph
reads as follows:
We owe vacation pay, the only question being the
date of payment. The employees owe insurance premi-
ums advanced or to be advanced. Why not charge the
premiums advanced or to be advanced against the va-
cation pay? By the time the premiums equal the vaca-
tion pay, say by September or October, we should ei-
ther have a contract or a decision to close. We invite
discussion.
The record does not reflect whether the discussion ad-
verted to in the above memorandum occurred and, if it did.
what agreement, if any, was reached.
Section 7(c) of the expired contract provides that vaca-
tions will be granted employees, to the extent practicable, at
times most desired by them, but that the Company reserves
the right to allot and change vacation periods for the pur-
pose of "insuring the orderly operation of the plant." How-
ever, all vacation are to be scheduled between May I and
October I of each year in the absence of mutual agreement
between the parties or the consent of the employee.
C. Analysis and Final Conclusions of Law
Section 8(a)(3) of the Act forbids an employer "by dis-
crimination ... to encourage or discourage membership in
any labor organization." If an employer's discrimination is
inherently destructive of important employee rights, no
proof of antiunion motivation is needed and the Board may
find an unfair labor practice even if the employer intro-
'Sec. 19 of the expired contract provided that in the event of a labor
dispute at the termination of the contract. the Company would continue
hospitalization and insurance benefits and that the Company would be reim-
bursed for such payments at the end of the dispute.
duces evidence that its conduct was motivated by business
considerations. If the impact of the discrimination on em-
ployee rights is comparatively slight, an antiunion motisa-
tion must be proved, provided the employer has come bfor-
ward with evidence of legitimate and substantial business
justification for its conduct. N.L.R.B. v. Great Dane Trail-
ers. Inc., 388 U.S. 26 (1967). The Board has held that the
denial of vacation pay to striking employees solely because
they were engaged in protected strike activity is inherently
destructive of employee rights. Borden, In(., Borden Chemni-
cal Division, 235 NLRB 982 (1978): Westinghouse Electric
Corporation. 237 NLRB 1209 (1978).
In the instant case nonstriking employees were paid vaca-
tion pay during the period of the strike, while striking em-
ployees were denied such benefits which had accrued to
them and which the Respondent conceded were owing to
them. Respondent's discrimination against the striking em-
ployees is therefore clear. Compare G. C. Murphti Compan,.
207 NLRB 579. 583, 584 (1973).
The record is also clear that Respondent's s:riking em-
ployees would have received the vacation benefits due
them, but did not because they were engaged in protected
concerted activity.
Six reasons are advanced by Respondent for its discrimi-
natory conduct: (I) the contract permitted Respondent to
reschedule vacations: (2) the rescheduling of vacation
would give Respondent flexibility and reduce layoffs: (3)
fewer layoffs would reduce supplemental unemployment
benefits: (4) fewer layoffs would reduce Respondent's con-
tribution to unemployment compensation: (5) fewer layoffs
would lessen the loss of skilled employees to other emplo\-
ers: and (6) employee insurance payments would be contin-
ued during vacations, but not layoffs.
With respect to (I), the contract is silent as to the right of
Respondent to withhold vacation pay due and owing strik-
ing employees. Respondent's right to change vacation peri-
ods is limited to the purpose of the orderly operation of the
plant. Under past practice, vacation pay had been paid
striking employees and the Union in the instant case was
assured by Auretto on March I that that practice would
prevail during the current strike. Nonstriking employees
were encouraged, if not directed, to take their vacations
during the strike. I conclude that the contract, as drafted
and interpreted prior to March 2. is not a defense to Re-
spondent's conduct in denying the striking employees their
vacation pay. Such action was not required to operate the
plant in an orderly manner. On the contrary, disposing of
the vacation pay issue during the strike would make all of
the employees immediately available for work at the end of
the strike, thus furthering the orderly operations of the
plant. Moreover, I agree with the General Counsel that any
such purported right of Respondent did not extend beyond
October I.
Nor was Respondent's conduct justified because of the
possibility of layoffs when the employees returned to work.
The cost of layoffs to Respondent are normal business ex-
penses and do not fall into the category of legitimate and
substantial business justification for discrimination against
striking employees.
With respect to all of the reasons now offered bh Respon-
dent, so far as the record shows, the Union was never in-
973
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed that these were the reasons motivating Respondent
in refusing to pay accrued vacation pay to strikers.
Auretto testified that Respondent believed it would be
beneficial to the Company to pay the striking employees
money in lieu of vacation at the end of the strike so that the
employees would be available for work. However, he was
unable to explain how Respondent would be adversely af-
fected if the employees took their vacations, as scheduled,
during the strike. He was not privy to management's deci-
sion to withhold vacation pay from strikers and was told by
Spresser only that Respondent needed "flexibility."
The only reason given to the Union to explain Respon-
dent's reversal of its position that strikers would receive
their vacation pay, when due, was Auretto's repeated state-
ments that the Company did not intend to finance the
strike.
I conclude that the reasons now advanced by Respon-
dent for its refusal to pay its striking employees their vaca-
tion benefits are pretextual and that the real reason is that
stated by Auretto-that the Company did not intend to
finance or subsidize the strike.
I find no merit in Respondent's argument that employees
on strike cannot take a vacation. Here the employees were
not at work and their status as nonworkers is protected
under this Statute. Their withholding of services from their
employer was and is lawful and cannot operate to preclude
them from enjoying the vacation to which they were enti-
tled under the contract. Vacation time is free time, time to
take a trip. go fishing, rest at home, or "moonlight." Noth-
ing in the contract permits Respondent discriminatorily to
grant vacation pay to nonstriking employees while denying
such benefits to striking employees.
I conclude, on the basis of the case cited above, that
Respondent violated Section 8(a)(3) and (1) of the Act by
denying striking employees vacation pay while granting
such pay to nonstriking employees.
The above unfair labor practice is an unfair labor prac-
tice within the meaning of Section 2(6) and (7) of the Act.
ORDER 6
The Respondent, Fort Pitt Steel Casting Division, Con-
val-Penn, Inc., McKeesport, Pennsylvania, its officers,
agents, successors, and assigns, shall:
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.
I. Cease and desist from:
(a) Discouraging membership in United Steelworkers of
America, Local Union No. 1406. AFL CIO, or any other
labor organization, by discriminating against its employees
with respect to their vacation pay because they have en-
gaged in protected concerted activity.
(b) In any like or related manner, discriminating against,
interfering with, restraining, or coercing its employees in
the exercise of rights guaranteed them by the National La-
bor Relations Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Make whole all employees for vacation pay due them
during the period of the March 3, 1978, strike, with interest.
as of the dates vacations were originally scheduled for these
employees and payment therefore withheld because of their
protected concerted activity. Interest shall be computed in
the manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumhbing & Healing
Co., 138 NLRB 716 (1962). The General Counsel's request
for a remedial interest rate of 9 percent is denied. N'eelv's
Car Clinic. 242 NLRB 335 (1979).
(b) Post, at its plant in McKeesport. Pennsylvania. cop-
ies of the attached notice marked "Appendix."7 Copies of
this notice, on forms provided by the Regional Director for
Region 6, after being duly signed by Respondent's repre-
sentative, 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 customarily are posted. Reason-
able steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 6 in writing,
within 20 days from the date ol this Order, what steps Re-
spondent has taken to comply herewith.
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 he deemed
waived for all purposes.
' In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted b) Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
974