G. C. Murphy Co.

National Labor Relations Board - Board Decisions

Nov 27, 1973

207 N.L.R.B. 579 (N.L.R.B. 1973)

G. C. MURPHY CO. 579
G. C. Murphy Company and General Teamsters,
Chauffeurs and Helpers Local 249 a/w Internation-
al Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Case
6-CA-6340
November 27, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On April 12, 1973, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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 brief
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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and hereby is,
dismissed in its entirety.
MEMBER FANNING, dissenting:
I agree with my colleagues in affirming the
Administrative Law Judge that the employees here
were engaged in activity protected by Section 7 of the
Act, and that the strike was legal and not a breach of
contract. From that starting point, however, I
analyze the case differently. The question here is
whether Respondent has violated Section 8(a)(3) and
(1) of the Act by denying or withholding from
1 N LRB. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967)
2 Flambeau Plastics Corporation, 167 NLRB 735, 744-745.
3 Cf. The Detroit Edison Company, 206 NLRB No. 116, where the
contract had no provision for rescheduling but there had been an actual
practice thereunder for about 20 years that the respondent was permitted to
and in fact did reschedule vacations as required by necessities , i.e., to
maintain an uninterrupted supply of electricity as a public utility. Also, that
contract provided that vacation scheduling would be done by management
"as per its needs" ; this contract provides that employees choose their own
vacation times on a seniority basis.
Also, cf Texaco, Inc, 179 NLRB 989, a dismissal which the Respondent
here relied on in its brief to the Adnnmstrative Law Judge . That contract
provided that the section dealing with vacations was to be governed by the
vacation rules of the respondent A booklet of the respondent covering these
rules stated that no particular time of year was designated for vacations,
which were to be left to the "discretion of Management to arrange the time
of vacation to best suit employees' convenience and least interfere with the
207 NLRB No. 73
employees their prescheduled vacation benefits
solely because they engaged in the sympathy strike. I
view the denial of accrued vacation benefits when
due, solely because the employees were engaged in
protected concerted activities, as inherently destruc-
tive of employee rights, hence violative of Section
8(a)(3) and (1) of the Act.' This Board has long held
that denial. of vacation benefits to employees who
would otherwise have received them but for the fact
they were on strike contravenes the rights of
employees to engage in protected strike activity.2
The Administrative Law Judge found that Respon-
dent, in rescheduling vacations, acted "according to
the procedure dictated by" the terms of the agree-
ment, and that such authorization was "implicit in
the overall scheme" evidenced by the various
vacation provisions. I disagree on both counts. The
contract provides in some detail for vacation
scheduling , but there is no provision for rescheduling
by the Employer once vacation schedules have been
determined-in this instance up to 11 months
beforehand. There is provision for rescheduling by
employees in certain limited circumstances (not
applicable here), but even this is further limited by an
exception that employee rescheduling not affect a
requirement that 50 regular employees be scheduled
during each week in June, July, and August.3
The contract is silent on the impact of strike time
on vacations . The last sentence of article
XV(d)-"No employee shall be permitted to take
vacation time as a credit against time lost for any
other reason."-is not explicated on this record as
having reference to strike time.4 Thus the Board's
dismissal in Roegelein Provision Company, 181 NLRB
578, 580, which the Administrative Law Judge
considered diapositive, is not authority for dismissing
this case. There the contract was negotiated during a
strike and specifically provided,that, over a 12-month
period, absence from work for 200 hours "for any
reason" disqualified the employee for a vacation. As
the Board there noted, the record in that case showed
that the meaning and scope', of that provision were
the subject of repeated discussions during contract
Company's operations." The respondent's action m declining to pay for
vacation periods that started after the strike began was consistent with a
past practice beginning with a 1945 strike, with one exception in 1950 in
favor of employees who because of illness had been unable to take
rescheduled vacations . Before the 1969 strike , the respondent gave notice
that it would again follow the practice of allowing no employee to start a
vacation after the strike started . The Trial Examiner found that the vacation
pay which went with the rescheduled vacations was larger than it would
have been if the vacations had been taken when originally scheduled-a
factor not here present-and the Board concluded that it had not been
established that the postponing of vacations and the compelling of
repayment of advance vacation pay with respect to such rescheduled
vacations were inherently destructive of employee rights.
4 The sentence ends a paragraph allowing "split vacations " in certain
circumstances, which, when scheduled , shall be altered only for personal
illnessor emergency situations See Appendix to Decision of the Administra-
tive Law Judge
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations and consequently "there could be no
confusion as to its intended impact upon reinstated
strikers." In fact, a union steward, pointing to the
contract clause, declined to process the grievances of
one of the individual charging parties who, had he
worked during the strike, would have qualified for a
vacation. This is not that sort of case. On this record
the majority cannot say, as the Board said in
Roegelein, that the Respondent was implementing "a
right understood to have been acquired through the
collective bargaining process." (Emphasis supplied.)
Another contract section relied on as supporting
the Respondent's right to reschedule vacations after
the strike is equally unpersuasive when considered in
context. Article XV(e) ends with the statement that
"an employee shall not be paid in lieu of vacation,"
but the beginning of this brief section simply
prohibits carrying unused vacation time over into the
next year, and, without punctuation, the section ends
with the quoted clause.
Reading on, the last section of the article on
vacations, article XV(i), specifically provides for
vacation pay in situations where the vacation has
been earned but cannot be taken. According to this
section, a resignation before a vacation is earned
means no vacation pay, while employees "resigning
after their vacation is earned will be entitled to full
vacation pay" if 2 weeks' notice is worked out, and
employees dismissed other than for cause will receive
pay "in lieu of earned vacation . . . ." In my
judgment, the majority has lost sight of the fact, as
the Administrative Law Judge did also, that all that
is sought here is pay for earned vacations scheduled
long before the strike-not a lump sum payment in
lieu of vacation.
There is also the matter of past practice, on which I
cannot agree with the majority and the Administra-
tive Law Judge. In the guard strike which took place
a few months before the occurrences in this case,
Respondent paid accrued vacation benefits to
members of this same unit who honored the picket
line. The assumption that those benefits were paid in
settlement of that dispute is not supported by this
record.5 The contract between these parties is the
first; the payment of accrued vacation benefits
during the guard strike is the only instance of
practice under it; I would view it as a meaningful
interpretation of the contract.
Thus, I agree with the General Counsel that the
Respondent here had no contract right to reschedule
vacations unilaterally. And, as the Respondent
offered no business justification for the rescheduling,
it seems clear to me that Great Dane Trailers, supra,
and this Board's recent decision in Cavalier,6 require
a finding that Respondent has violated Section
8(a)(3) of the Act.7
5 Accepting the testimony of Respondent's personnel director at face
value, it appears that Respondent paid the vacation benefits during the
guard strike as the result of a grievance meeting. During this strike,
Respondent refused to hold a grievance meeting.
6 Cavalier Division of Seeburg Corporation, 192 NLRB 290.
7 One wonders what this Board would do had the charging Union
contended that some of the 95 employees required to reschedule their
vacations had made firm plans for their long prescheduled vacations,
including reservations and advance payments that were forfeited when their
normal pay for those prescheduled vacations was not forthcoming. Must the
employees demonstrate an economic loss when forced to forego a
prescheduled vacation under a contract such as this? Would it suffice if
their income level supported the inference of economic loss in circum-
stances such as occurred here?
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This case
was tried before me at Pittsburgh, Pennsylvania, on March
7, 1973. The charge was filed on September 27, 1972, by
General Teamsters, Chauffeurs and Helpers Local 249 a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union. The complaint which issued on January 31, 1973,
alleges in substance that G.C. Murphy Company, herein
called the Respondent, violated Section 8(a)(1) and (3) of
the Act by withholding and refusing to pay vacation
benefits in order to discourage employees from engaging in
protected and union activity. Respondent, in its duly filed
answer, denied the alleged unlawful conduct.'
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed on behalf of the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Business of Respondent
Respondent is a corporation engaged in the operation of
chain of retail variety stores throughout Pennsylvania,
including a warehouse facility at McKeesport, Pennsylva-
nia. During the 12-month period immediately proceeding
the issuance of the complaint and notice of hearing,
Respondent's gross sales derived from its Pennsylvania
operation exceeded $5,000,000 and, during the same
period, Respondent received goods valued in excess of
$50,000 at said Pennsylvania operations directly from
points outside of said State.
The complaint alleges, the answer admits, and I find that
Respondent, at all times material , is an employer engaged
in commerce and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
1 At the hearing, Respondent requested permission to strike from its
answer, paragraph I I thereof, which affirmatively plead that this proceedi
should be deferred to the arbitral process set forth in the applicable
collective-bargaining agreement . I granted said request, on Respondent's
indication that it sought decision on the merits of the issues raised by the
pleadings.
G. C. MURPHY CO. 581
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
Broadley stated, the question presented here is whether
Respondent denied certain production employees accrued
vacation benefits because they refused to cross a lawful
picket line established at their place of work in furtherance
of a dispute between Respondent and employees in an
entirely different collective-bargaining unit.
The basic facts are, in the main, undisputed. They show
that the Union, at all times material to this proceeding,
separately represented a production and maintenance unit
and an office clerical unit at Respondent's McKeesport
warehouse.
Thus, in December 1970, the Union was certified as the
collective-bargaining representative for all production and
maintenance employees at said warehouse. Thereafter, a
collective-bargaining agreement covering said unit was
entered, effective June 11, 1971, through August 1, 1973.
During the term of that contract, and on March 2, 1972,
the Charging Union was certified as the bargaining
representative of a separate unit of office clerical employ-
ees at this same facility. Following a breakdown in
negotiations for a contract covering the clerical unit, the
Union, on August 28, 1972, struck Respondent. A picket
line was established pursuant to this dispute.
Some 350 production and maintenance employees
honored this picket line. The picketing continued until
September 28, 1972, at which time all employees returned
to work. On October 9, 1972, the picketing by members of
the office clerical unit resumed and this picket line was
again honored by the production and maintenance
employees. This work stoppage continued until October 17,
1972, at which time agreement was reached covering the
office clerical unit and all employees returned to work.
As will be seen infra, the vacation benefits provision of
the contract covering the production and maintenance
unit, hereinafter referred to as the agreement, specifically
establishes a system for advance scheduling of vacations.
Under this procedure, in November of the preceding year,
1971 in this case, the production and maintenance
employees made requests, in writing, embodying their
choice of vacation periods. Pursuant to Respondent's
definition of manpower needs and limitations on the
number of employees that could be given a vacation in any
one week, Respondent recognized employee choice on the
basis of seniority. All vacations for the year 1972 were
2 Lawrence Donnelly, an employee in the production and maintenance
unit and steward testified, on direct exannation by the General Counsel,
that at a negotiation session during the strike an agent of Respondent
rejected the Union's demand for vacation pay, stating that no benefits
would be paid until the strike was over. On cross-examination, however, he
could not recall whether the statement actually made was merely that
vacations would be rescheduled after the work stoppage ended. Charles
Marsh, personnel manager for the Respondent , testified that he was present
at this conversation, and contradicted Donnelly's version of the stated
scheduled in accordance with this procedure and well in
advance of the strike.
The instant dispute arises from the fact that certain of
the production workers who refused to cross the picket line
in August, September, and October 1972, had prescheduled
vacations for times contemporaneous with the strike. At
the close of the strike, or shortly prior thereto, the Union
requested that these employees be accorded a lump sum
vacation payment in lieu of time off with pay. The
Respondent refused, stating that upon cessation of the
strike vacations would be rescheduled.2 On termination of
the strike this is precisely what occurred. Respondent
followed the established procedures for selection of
vacation time, and all employees covered by the instant
complaint were awarded time off, with pay before the end
of the year.
B. The Issues
As heretofore indicated the complaint alleges that
Respondent violated Section 8(a)(3) by withholding and/or
refusing to pay accrued vacation benefits that were due to
employees in August, September, and October 1972.
However, no claim is made that any of Respondent's
employees were denied vacation benefits in that year, and
it is clear from the record that all employees received
vacation benefits during 1972. The controversy centers
upon and is limited to the form in which these benefits
were conferred.
Thus, in effect, the General Counsel' argues that
Respondent was obligated to provide a lump sum vacation
payment to employees who honored the picket line and
who for that reason were not working at the time of their
scheduled vacation. The General Counsel further argues
that Respondent denied such payments in reprisal for the
employees' support of the clerical strike and that Respon-
dent's rescheduling of time off with pay to those employ-
ees, instead of providing lump sum payments, constituted
proscribed discrimination.
By way of remedy the General Counsel asserts that the
employees adversely affected by the rescheduling of
vacations suffered a loss of pay for the calendar year 1972
equal to the length of their vacation period. For this
reason, the General Counsel claims that, though all
employees received time off with pay during the vacation
year, the alleged violation should be remedied by affording
these employees backpay to the extent of their lost
earnings.
Respondent, by way of defense, contends that its action
did not constitute discrimination since the rescheduling of
vacations was entirely consistent with the terms of the
governing collective-bargaining agreement . More specifi-
cally, Respondent asserts that said agreement provides for
a vacation benefit expressly limited to time off with pay,
explanation of what the Company would do about vacations According to
Marsh, the Union was simply informed that vacations would be rescheduled
after the strike. Marsh, further testified, without contradiction that
Respondent paid all benefits, other than vacation, during the strike such as
hospitalization and insurance . I credit Marsh, whose capacity for recollec-
tion appeared sharper than Donnelly's and whose testimony is more
plausible, considering the Company's continued payment of other benefits
during the strike.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it precludes carrying over unused vacation into the
next year and that it specifically bars the payment of a
lump sum in lieu of time off. In the alternative, Respon-
dent contends that, the employees involved, by honoring
the picket line, engaged in unprotected activity since their
refusal to work was in contravention of the no-strike clause
in the subsisting agreement.
C. Analysis
It is well established, as the General Counsel observes,
that Section 8(a)(3) precludes an employer from reducing
or otherwise impairing the benefit level of employees by
reason of their having engaged in protected union activity.
See, e.g., -Cavalier Division of Seeburg Corporation, 192
NLRB 290. I would also agree with the General Counsel
that where illegal motivation is shown, it may well be
immaterial that an employer's allegedly unlawful action is
consistent with the terms of an applicable collective-
bargaming agreement. See, e.g., Laher Spring & Electric
Car Corp., 192 NLRB 464. Finally, it is noted that
independent proof of discriminatory motivation is not
necessarily an indispensable element of the General
Counsel's case in a cause alleging wrongful discrimination
against employees for engaging in protected union activity;
for as the Supreme Court has stated in N.L.R.B. v. Great
Dane Trailer, 388 U.S. 26, at p. 34:
... if it can reasonably be concluded that the
employer's discriminatory conduct was `inherently
destructive' of,important employee -rights, no proof of
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. Second, if the adverse effect of the
discriminatory conduct on employee rights is 'compar-
atively slight,' an antiunion motivation must be proved
to sustain the charge if the employer has come forward
with evidence of legitimate and substantial business
justifications for the conduct.
However, absent specific proof of improper motivation,
neither the foregoing principles nor any discernible
construction of Section 8(a)(3) requires an employer- to
depart from a contractually defined formula of general
3 In the view I take of the case, I assume, but need not decide whether or
not the allegedly aggrieved employees, in refusing to cross the picket line,
were engaged in activity protected by Section 7 of the Act. Were I called
upon to resolve that question, I would find that they were. The applicable
collective bargaining contains a declaration of intent "to do away with the
possibility of strikes," and article XI thereof includes a broad no-strike
clause. However, as I read the agreement, that clause is qualified by article
IV(c), which states "It shall not be a breach of contract to refuse to work on
or from any premises where a strike exists, and no employees can be
disciplined for such action." I reject as specious the Respondent's claim that
this clause did not effectively remove conduct covered thereby from the
prohibition of the no-strike clause. The employee conduct involved here was
within article IV(c), and since that clause effectively limits the "no strike"
clause, the union activity in question was not in violation of the contract
and not for that reason converted to unprotected activity.
4 There was testimony in the record that plant security personnel in the
spring of 1972, engaged in a strike and that, pursuant thereto, the
production and maintenance workers honored the picket line established in
connection with that dispute. In settlement of that dispute, Respondent
agreed to make vacation payments to those production workers whose
vacations were scheduled to coincide with that strike However, that
agreement was not introduced in evidence, and the testimony fails to
application and to confer special benefits upon employees
because they have participated in protected union activity.
As I perceive this record, and the theory underlying the
instant complaint, this is precisely what the General
Counsel seeks here .3
The instant record is totally barren of credible evidence
suggesting union animus or hostility. Nor does it appear
that either through contract or practice,4 employees, whose
scheduled vacation fell during periods when they were out
of work for any reason, had an option of receiving vacation
pay in lieu of a rescheduled vacation with pay.5 Indeed, the
contract, relevant provisions are attached hereto and
marked "Appendix," speaks specifically, and without
ambiguity, to the nonexistence of such an election.
Thus article XV, Vacation Plan (c) states:
(c) It is the intent of this ARTICLE that it be
compulsory for eligible employees to take time off for
their vacation period and further that no employees
shall be permitted to change their scheduled vacation
period or any part thereof provided, however, an
employee shall reschedule their vacation only if his or
her scheduled vacation falls during an Approved or
Authorized- Leave of Absence, except that such
rescheduling will not affect vacations scheduled pur-
suant to (b) of this Article and further provided, that
the employee must return to work for a period of two
(2) weeks before taking a rescheduled vacation.
Article XV, Vacation Plan (d) provides, in material part:
No employee shall be entitled to take vacation time as
a credit against time lost for any other reason.
Article XV, Vacation Plan (e) provides:
(e) Unused vacation time cannot be carried over into
the next year and an employee shall not be paid in lieu
of vacation.
Article XV Leaves of Absence, in material part provides:
While on an Approved Leave, the employee's continu-
ous service record will be maintained and credit
granted for the time absent just the same as though at
work. However, no employee may receive insurance
increments, vacation pay, or other benefits except sick
relief or workmen's compensation while on leave of
absence. The increments will be received following the
describe its content or whether or not it was reduced to writing Since
neither the terms of the agreement nor the specific circumstances under
which it was reached is a matter of record, I am unwilling to assume that
this represented anything other than an ad hoc concession ancillary to the
settlement of a strike and in the interest of returning employees to work. In
my judgment , such an arrangement does not give rise to a practice sufficient
to alter the clear terms of a contract. It follows therefore that Respondent
was under no obligation to take a similar course during the clerical strike,
and hence its failure to do so at that time was hardly indicative of a
discriminatory intent
No further evidence of a practice of granting lump sum vacation pay was
adduced, and Donnelly, the union steward, had no direct knowledge that
any employee had ever worked during his scheduled vacation period and
received a pay check covering that vacation entitlement
5 As will be seen this policy was applied without exception among
employees on payroll status. However, the contract, in article XV(i) does
provide for lump sum vacation payments in the case of employees who have
earned their vacation, but, who, prior to taking them, have resigned their
employment or been terminated for reasons other than cause, or whose
vacations could not be rescheduled because they were in layoff. I deem
these narrow exceptions to the prevailing policy as irrelevant to the basic
issue involved herein
G. C. MURPHY CO. 583
employee's return to work according to the policy
covering each one.
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 forms I am satisfied and find that Respondent,
in rescheduling the vacations of those whose vacations fell
during the period of the strike, acted according to the
procedure dictated by the terms of the existing collective-
bargaining agreement .7
The Board has held that even where employees are
denied benefits as a consequence of their protected
activity, no inference of discriminatory motivation should
be drawn where the evidence establishes that said denial
constituted ". . . a lawful implementation of a right .. .
acquired through the collective bargaining process." 8
I am satisfied that this case falls well within that
principle. In doing so, I note that, for the following
reasons, Respondent's application of the contract could
not be regarded as anything other than a "lawful
implementation" thereof.
First, from the standpoint of its impact, the contractual
rule against lump sum vacation payments had no special
consequence for those absent from work by reason of their
support of the clerical strike. As in the case of the strike
supporters, it is apparent from article XV that employees
who are on approved or authorized leave of absence at the
time of their scheduled vacation, are not entitled to
vacation pay, but must have their vacations rescheduled.
This is so, despite the fact that employees on leave might
be inconvenienced by this arrangement and hence would
also prefer a lump sum payment as against "time off." It is
quite obvious therefore that the contractual "time off"
requirement has the same impact on persons absent from
work at the time of their preordained vacation, whether
said absences be related to protected activity or any other
reason. Against this background, to brand Respondent's
action as unlawful is to assume that employees engaged in
union activity are to be accorded more favorable treatment
than others similarly situated, a notion which to my
thinking constitutes discrimination, which on its face,
6 Cf. Cavalier Division of Seeburg Corporation supra, where the Board, in
finding an 8(a)(3) violation based on the employer's denial of accrued
vacation pay to strikers, was careful to point out that the applicable contract
accorded employees the option of taking pay in lieu of time off.
,7 Although the General Counsel takes issue with Respondent's claim that
the rescheduling of vacation was required by the contract, he does so on
grounds that this action was not specifically authorized by the contract. In
finding no merit in i the General Counsel's position, I note that such
authorization is implicit in the overall scheme evidenced by the various
vacation provisions.
S Roegelein Provision Company, 181 NLRB 578. In that case, a Board
majority dismissed an 8(a)(3) allegation where an employer, pursuant to a
recently negotiated cgntract, denied vacations to certain participants in the
strike which lead to execution of that agreement. The employer's action was
pursuant to a provision precluding vacations to employees "absent from
work for any reason for as many as two hundred (200) hours during the
twelve (12) months immediately preceding the taking of his vacation ... .
After the strike, vacation benefits were denied to certain strikers solely
because the employer counted strike time as a disqualifying. absence for
purposes of the "200 hour" limitation. The Board reversed the Trial
Examiner, who had -found this to be unlawful discrimination under Section
8(a)(3), and dismissedithe complaint. In my judgment, the result in that case
was absolutely consistent with the standards laid down in N.LR.B. v. Great
Dane Trailers, supra, and the body of precedent cited therein.
encourages union membership and hence is precisely the
type of arrangement that Section 8(a)(3) seeks to con-
demn.9
Aside from the foregoing, close examination of the
General Counsel's position in the light of the impact of this
complaint on the entire group of strike supporters,
discloses that the General Counsel through this complaint,
seeks to establish a classification of beneficiaries which
rests on arbitrary considerations unrelated to Section 7 of
the Act. All who honored the picket line were subject to the
requirement that vacation benefits be in the form of time
off only. However, this complaint alleges wrongful discrim-
ination against only those whose vacations fell during the
strike. Nonetheless, it is a fact that unit employees who
declined to cross the picket ,line, but whose vacations were
not scheduled for August, September, or October 1972,-had
no right to claim vacation pay in lieu of time off. Perhaps
this group, by reason of low seniority preference or a
change in plans or whatever, would also find value in the
option claimed to have been unlawfully denied here. But,
as this complaint implicitly concedes, by no stretch of the
imagination could Section 8(a)(3) be extended to accord
this-latter group such a "right."
Yet, the only distinction between those who honored the
picket line, and are the objects of alleged discrimination
under this complaint and those who were also engaged in
such activity but are not covered by this complaint, is the
fortuity of when their scheduled vacations happened to
fall. Otherwise both categories were similarly situated; for,
they both received time off with pay during the vacation
year 1972, the primary impact of the contractual policy fell
equally on both groups,10 and both groups refused to cross
the picket line. Thus, to find that the contractual vacation
policy involved here was unlawfully applied would provide
the alleged discriminatees a benefit not available to their
brothers who also honored the picket line, but whose
vacations fell, outside the strike period. Such a result is
anomolous; for, to provide selective relief on the basis of
such a dichotomy,, would not in any sense rest upon a need
or a desire to protect the Section 7 rights of employees; it
can hardly be said that a contractual policy which falls
9 Cf N.L.R.B_ V. Great Dane Trailers, Inc, supra, p. 32. "The act of
paying annual benefits to one group of employees while announcing the
extinction of the same benefits,for another group of employees who are
distinguishable only by their participation in protected concerted activity
may have a discouraging effect on either present or future concerted
activity "
io At this juncture, I would note that the General Counsel urged that, in
the event a violation is found, backpay would be justified in an amount
equal to the wage entitlement for each week that an alleged discriminatee
was eligible for vacation. It is argued that this remedy imposes no penalty
and is necessary because each discriminatee , by virtue of Respondent's
conduct, lost earnings for the weeks they were required to take off. Were I
to find a violation I would deny such relief. In my opinion it would unduly
penalize the Respondent and unjustly enrich the alleged discrimmatees, all
of whom have had their vacations in the form of time off with pay The
windfall that would result from imposition of such a remedy is graphically
-illustrated by the fact that a like loss of earnings was accrued by those strike
supporters whose vacation fell outside the period of the strike. However, no
claim of discrimination or back wages is trade in their behalf nor would any
such claim be tenable . In these circumstances, to grant such relief to the
alleged discriminatees, would give them monetary award over and above the
vacation benefit, which they and other strike supporters have already
received.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equally upon all engaged in the same protected activity
constitutes inherently discriminatory action as to a
segment of that group where, as here, the distinction as
between those who are and those who are not victims of
the alleged discrimination rests upon considerations wholly
extraneous to the safeguards of Section 7 and 8 of the Act.
For these reasons, I find that no discrimination resulted
from Respondent's failure to provide a special vacation
pay benefit to certain of the production and maintenance
workers who honored the picket line in August, September,
and October 1972. The implementation by Respondent of
the vacation policy against lump sum vacation payments
placed the alleged discriminatees on parity with those
adversely affected because absent for other reasons, and
indeed with others who honored the picket line, but who
could not make legitimate claim for the type benefit sought
here. Further, there is no independent evidence of
antiunion motivation, nor a basis for drawing an inference
that the Respondent's action was in the interest of
discouraging union membership. In my opinion, I am here
confronted with an even stronger case in support of an
employer's right to avail himself of benefits acquired
through the collective-bargaining process then was present-
ed in Roegelein Provision, supra, a decision that I regard as
dispositive herein. Accordingly, I shall recommend that the
complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. G.C. Murphy Company is, and has been at all times
material herein, an employer within the meaning of Section
2(3) of the Act and engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union, General Teamsters , Chauffeurs and
Helpers Local 249 a/w International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of
America, is , and at all times material has been , a labor
organization within the meaning of Section 2(5) of the Act.
3. As found above, Respondent has not violated
Section 8(a)(3) and 8(a)(1) of the Act by withholding and
refusing to pay accrued vacation benefits to employees.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER"
The complaint is hereby dismissed in its entirety.
1' 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.
APPENDIX
ARTICLE XI
Sufficient methods having been established to settle any
grievance or dispute that may apse , in an amicable
manner, therefore, there shall be no strikes, or slowdowns
by the employees nor any lockouts of the employees by the
Employer during the period covered by this Agreement.
ARTICLE IV
(a) The Union agrees to further and promote the best
interests of the Employer at all times.
(b) The Union agrees to make every effort to see that
employees who are in the Employer's employment obey all
rules and regulations negotiated by the Employer and
Local Union 249. A copy of said rules marked Exhibit `B"
is attached hereto and made a part hereof.
(c) It shall not be deemed a breach of contract to refuse
to work on or from any premises where a strike exists, and
no employee can be disciplined for such action.
Vacations
(a) Earned vacations with pay will be granted to all
regular employees covered by this Agreement in accord-
ance with their length of continuous service with the
Employer.
For the purposes of determining earned vacation periods
of layoff during which seniority rights are not forfeited and
authorized leaves of absences as hereinafter defined in this
Agreement under Leaves of Absence from which the
employee is reinstated without loss of seniority shall be
considered as continuous service with the Employer, but
such period of layoffs or leaves of absence shall not be
considered service with the Employer for purposes of
determining earned vacation to which an employee may be
entitled.
(b) On or after November I of each calendar year, each
employee entitled to take vacation time off in the following
year, will be requested to specify in writing (not later than
two (2) days after the receipt of such request on a form
provided by the Employer) the vacation periods he or she
desires. Employees to select their vacation in order of their
seniority and upon completion of the requests, vacations
will be scheduled during the next calendar year, provided,
however, fifty (50) regular employees will be scheduled
during each week in the months of June, July and August
and further, provided that if fifty (50) regular employees do
not request vacation during said weeks additional regular
employees will be scheduled by the Employer by inverse
seniority to complete the fifty (50) regular employees. In
each of the remaining weeks in the calendar year up to
twenty-five (25) regular employees will be scheduled based
on their seniority.
(c) It is the intent of this ARTICLE that it be
compulsory for eligible employees to take time off for their
vacation period and further that no employee shall be
permitted to change their scheduled vacation period or any
part thereof, provided, however, an employee shall resche-
dule their vacation only if his or her scheduled vacation
falls during an Approved or Authorized Leave of Absence,
except that such rescheduling will not affect vacations
scheduled pursuant to (b) of this ARTICLE and further
provided, that the employee must return to work for a
G. C. MURPHY CO. 585
period of two (2) weeks before taking a rescheduled
vacation.
(d) Vacation period of less than one (1) week shall not be
scheduled, provided, however, an employee may split one
week of his or her vacation within his or her scheduled
vacation period by requesting the Warehouse Personnel
Department to schedule in accordance with paragraph (b)
of this ARTICLE one, two, three or four days of vacation
provided further that such scheduling of split vacation
upon request to the Warehouse Personnel Department can
be altered only for personal illness and such other
situations which may be properly judged as emergencies.
No employee shall be permitted to take vacation time as a
credit against time lost for any other reason.
(e) Unused vacation time cannot be carried over into the
next year and an employee shall not be paid in lieu of
vacation.
(f) An employee shall become eligible for vacation in
accordance with the following schedule, provided, he or
she had been employed continuously six (6) months or
more.
Employees who started to work prior to November I of
any year vacation is earned as of May 1 of the next year.
Employees who started to work between November 1
and February 1 of any year, vacation is earned as of
August 1 of that year and must be scheduled after August 1
of that year.
The eligible employees who have attained the years of
continuous service indicated in the following table in any
calendar year during the continuation of this Agreement
shall receive a vacation corresponding to such years of
continuous service as shown in the following table:
Employed continuously six (6) months but less than
one (1) year-1 week with pay
Employed continuously one (1) year but less than five
(5) years-2 weeks with pay
Employed continuously five (5) years but less than
fifteen (15) years-3 weeks with pay
Employed continuously fifteen (15) years but less than
twenty-five (25) years-4 weeks with pay
Employed continuously twenty-five (25) years or
more-5 weeks with pay
(g) Vacation pay shall be determined on the basis of a
forty (40) hour week at the employee's highest hourly rate
earned (but excluding shift differential and overtime
premium) for twenty (20) hours or more worked during the
week prior to vacation.
(h) Should a holiday occur during a vacation week, the
employee or employees will be entitled to an extra day of
vacation to be mutually agreed upon by the employee and
the Employer during the calendar year.
(i) Eligible employees resigning before their vacation is
earned are not entitled to vacation pay. Eligible employees
resigning after their vacation is earned will be entitled to
full vacation pay, provided, however, that a two (2) weeks
notice is worked out. Eligible employees dismissed other
than for cause will receive pay in lieu of earned vacation,
provided, however, that said vacation was earned at time
of dismissal.
Leaves of Absence
All leaves of absence shall fall within one of the
following classifications as determined by the reason for
the leave:
Approved Leave of Absence: This type of leave can be
granted only on the basis of personal illness (except
pregnancy) or disability of the employee.
While on an Approved Leave, the employee's continuous
service record will be maintained and credit granted for the
time absent just the same as though at work. However, no
employee may receive insurance increments , vacation pay,
or other benefits except sick relief or workmen's compensa-
tion while on a leave of absence. The increments will be
received following the employee's return to work according
to the policy covering each one.
Authorized Leave of Absence: This type of leave includes
all leaves of absence granted for other than personal illness
of the employee or military service.
While on an Authorized Leave, the employee's contmu-
ous service record will not be broken for three months but
no credit will be allowed for the time thus lost exceeding
the three month leave. Upon returning from an Authorized
Leave of Absence, the employee's service record will be
resumed from the point at which it stood when the leave
began plus the aforementioned three month period.