Texaco Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1969

179 N.L.R.B. 989 (N.L.R.B. 1969)

TEXACO INC. 989
Texaco Inc. and Willie M. Bennett, Jr. Case
23-CA-3293
December 8, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On September 17, 1969, Trial Examiner Richard
D. Taplitz issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner' s Decision . Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent
filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The National Labor Relations Board has
reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusion,
and recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
'We agree with the Trial Examiner that the evidence fails to establish
that the Respondent 's actions in postponing employees' vacations during a
strike and compelling the repayment of vacation pay previously advanced
were inherently destructive of employee rights or were discriminatorily
motivated in fact We need not, therefore, pass upon the issue of whether
the strike itself was unlawful or an unprotected activity.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLrrz, Trial Examiner: This case was
tried at Port Arthur, Texas, on May 28, 1969.' The issues
litigated were framed by a complaint dated May 1, as
amended at the hearing, alleging violations of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended, and an answer dated May 16, filed by Texaco
Inc., herein called Respondent, which admits many of the
factual allegations of the complaint but denies that
Respondent violated the Act. The complaint was based on
a charge dated March 21, filed by Willie M. Bennett, Jr.,
an individual. All parties appeared at the hearing and
were given full opportunity to participate, to adduce
relevant evidence, to examine and cross-examine
witnesses, to argue orally and to file briefs. Briefs which
have been carefully considered were filed on behalf of the
General Counsel and Respondent.
Issues
1. Whether Respondent violated Section 8(a)(1) and (3)
of the Act by advising the Union that no vacations other
than those which had already begun would be granted
during a strike and that vacations scheduled to commence
during a strike period would be rescheduled following
termination of the strike.
2. Whether Respondent violated Section 8(a)(1) and (3)
of the Act by rescheduling the vacation of Willie M.
Bennett, Jr., the Charging Party, and requiring him to
repay advanced vacation pay.
3. Preliminary to the issues set forth in 1 and 2, the
question is raised whether the strike referred to therein
was lawful or protected under the Act.
Upon the entire record' of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, is a multistate
organization with offices and plants in various states of
the United States. One of these places of business is a
plant and terminal located at Port Arthur, Texas, where
Respondent manufactures, refines, sells and distributes
petroleum products. During the 12 months preceding the
issuance of complaint, Respondent manufactured, refined,
sold and distributed products valued in excess of $50,000
which were shipped from its Port Arthur plant and
terminal directly to points outside the State of Texas I
find that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find
that the Oil Chemical and Atomic Workers' International
Union, Local Union No. 4-23, AFL-CIO, herein called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.'
'All dates are in 1969 unless otherwise specified
'Respondent filed a motion to correct the transcript of the record In the
absence of any objection, the motion is granted The corrections are set
forth in Appendix A, [omitted from publication] of this Decision . Included
in these corrections is one that was not raised by the motion On p 85, 1
8, the word "objection" is corrected to read "amendment".
After the close of the hearing, the General Counsel filed a motion to
strike from Respondent's brief an Appendix A which was a copy of a
ruling in another case made by Irving M. Herman, Director of the General
Counsel's Office of Appeals. The motion is denied An administrative
decision of the General Counsel such as that set forth in Appendix A may
be properly referred to in a brief even though it is, of course, not binding
upon a Trial Examiner or the Board The factual matters set forth in the
brief are strictly limited by the testimony on the record, but in a legal
argument an attorney can refer to any authority that he thinks should be
considered
'it is noted that the Charging Party is an individual and the Union did
not seek to intervene.
179 NLRB No. 152
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting and Past Practices With Regard to
Vacations During Strikes
Respondent has had collective-bargaining relations with
the Union at its Port Arthur plant and terminal since
1942. The Union represents the production and
maintenance employees in what is known as the main
plant unit.4
Vacation eligibility standards covering employees in the
main plant unit are codified in a collective-bargaining
agreement between the Respondent and the Union.' After
one year's employment, an employee is eligible for 2
weeks' vacation with pay; after 5 years, 3 weeks' vacation
with pay; after 10 years, 4 weeks' vacation; and after 20
years, 5 weeks' vacation with pay. The Respondent and
Union agreed in the contract that the administration of
the section of the contract dealing with vacation is to be
governed by the vacation rules of Respondent. These
vacation rules as set forth in Respondent's booklet on the
subject provide that no particular time of the year is
designated for vacations and says, in part:
. . . It is left to the discretion of Management to
arrange the time of vacation to best suit employes'
convenience and least interfere with the Company's
operations. As far as practicable, employes' wishes as to
date of vacations will be considered; however, it must
be recognized that no considerable number can be
absent at one time and that it may not always be
possible to grant vacation at exactly the desired date.
Except for one exception the Company has never paid
vacation pay in lieu of vacation. That exception occurred
in 1950 when after a 4-month strike, Respondent and the
Union agreed that certain employees who because of
illness had not been able to take vacations during the
remainder of the vacation year, could receive vacation pay
while not taking a vacation. Other than that, vacation
time has always been considered time off from work for
vacation.
Vacations are scheduled on a rotating basis. Each year
an employee's vacation is moved up 3 months so that
employees can take turns having summer and winter
vacations. However, employees are allowed to trade
vacations subject to Respondent's approval. Schedules and
changes are posted on the bulletin board. For the past few
years, Respondent has paid vacation pay in advance of
vacation when employees have requested it.
The Union engaged in strike activity against
Respondent in 1945, 1950, 1952, 1967, and 1969. During
each of these strikes, Respondent's action with regard to
vacations was the same. Employees who had started their
vacations prior to the commencement of a strike could
continue vacations but no employee would be allowed to
start a vacation after the commencement of a strike. All
employees who were scheduled to begin a vacation after
the commencement of a strike had their vacations
rescheduled to begin after the end of the strike.'
'In addition , Respondent at its Port Arthur plant and terminal, has
collective-bargaining relationships with the International Brotherhood of
Electrical Workers in an electrician instrument -man and powerhouse
operator unit; the Oil, Chemical and Atomic Workers' International Union
in a product control or laboratory unit; the Office and Professional
Employees International Union in a clerical unit ; and another Oil,
Chemical and Atomic Workers' Union in a guard-watchman and gateman
unit
'These findings are based on the 1967 -68 contract which is discussed
more fully, infra
Respondent made no distinction between strikers,
nonstrikers and returned strikers during strike periods, but
applied these vacation policies uniformly to all employees.
Employees who were advanced vacation pay prior to their
scheduled vacation but who had their vacations
rescheduled because of the strike were required by
Respondent to repay the advance.'
B. The 1969 Strike
1. The contract and the notice of termination
On January 18, 1967, Respondent and the Union
entered into a contract which pursuant to its terms was
effective from January 1, 1967, until January 1, 1969,
"and thereafter subject to amendment or termination by
said parties after January 1, 1969, upon 60 days' written
notice to the other." The contract contained a no-strike
clause which provided that the Union had to give the
Respondent a written notice of its intention to strike; that
Respondent had 30 days from receipt of the notice to try
to reach an agreement ; and that the Union had the right
to strike if an agreement was not reached within 60 days
after the expiration of the 30-day period. In effect, this
provision required the Union to give a 90-day strike
notice.'
On November 11, 1968, Nelson D. Edgerly, chairman
of the Texaco Workmen's Committee, which was the
negotiating committee of the Union, delivered to Frank P.
Youngblood, Jr., Respondent' s manager of employee
relations , a letter dated November 8, 1968, which said:
CERTIFIED: RETURN
RECEIPT REQUESTED
Mr. F. D. Dort, Works Manager
TEXACO, INC.
Post Office Box 712
Port Arthur, Texas 77640
Dear Sir:
Without waiving any of our legal rights under our
previous notice under Article XV, we now advise you as
follows:
'As noted above, there was one exception to this. After the 4 month
strike in 1950, some employees were paid in lieu of vacation.
'The Union never requested to bargain and there was no bargaining
about Respondent 's strike-vacation policy or the implementation of that
policy. However , there is no "refusal to bargain" issue in this case. The
complaint does not allege a violation of Sec. 8(a)(5) of the Act and the
General Counsel stated on the record that he was not claiming that
Respondent unlawfully refused to bargain.
'The text of this article of the contract is as follows.
ARTICLE XV STRIKES AND LOCKOUTS
The Union agrees that there shall be no strike , stoppage , or slowdown
of work, and the Company agrees there shall be no lockout of the
Union, (I) for any cause which may be the subject of a grievance under
Article XIV of this Agreement during the period covered by this
Agreement ; or (2) for any other cause , except upon written notice to the
Company from the Union of its intention to strike , provided (a) that the
Company within thirty days from the receipt of such notice will meet
with the representatives of Local Union No. 4-23 and endeavor to reach
an agreement on the matter in dispute , and (b) in the event an
agreement is not reached within sixty days after the expiration of such
thirty-day period, the Union , upon the expiration of such sixty-day
period , may immediately exercise its right to strike.
Should the Union exercise its right to strike as provided under (2) (b)
above , all obligations unposed upon the parties to this Labor Agreement
will be terminated with the commencement of such strike and shall
continue to be terminated unless and until it is mutually agreeable to
both parties to reimpose said obligations
TEXACO INC.
Pursuant to the preamble of our contract the Union
hereby serves notice of its desire for amendment or
termination of our agreement effective sixty (60) days
from the date of delivery of this letter.
This notice is also served in compliance with the
Labor Management Relations Act of 1947 as amended
The Union hereby offers to meet with you at the
earliest mutual agreeable date for the purpose of
contract negotiations.
Please advise us when such negotiations may be
scheduled.
Copies of this notice are also being served to the
Federal Mediation and Conciliation Service and State
Agency.
Sincerely and fraternally,
OIL, CHEMICAL &
ATOMIC WORKERS
INTER-
NATIONAL UNION,
AFL-CIO, LOCAL 4-23
/s/ Nelson D . Edgerly
Nelson D . Edgerly,
Chairman,
TEXACO PAW &
TERM. GROUPS
WORKMEN'S
COMMITTEE
By letter dated November 18, 1968, Respondent replied
to the Union's notice and said , in part:
In your letter, the Union served notice of its desire
for amendment or termination of our Collective
Bargaining Agreement effective sixty (60) days from the
date of delivery of the letter. In accordance with such
notice, we shall, therefore, consider the current
agreement as being terminated at 12:01 a.m. on January
11, 1969.
2. The final negotiations and the strike
As noted above, Respondent and the Union were
parties to a collective bargaining agreement which was
effective until January 1, 1969, and thereafter subject to
60 days' written notice. The parties began negotiations for
a new contract the first week of September 1968.
Thereafter they had various negotiating sessions. At 2
a.m. on January 4, 1969, the Union at a meeting with
Respondent announced that it was withdrawing all
proposals concerning employee benefits, that it intended to
strike and that it was ready to bargain for an orderly
shutdown. Respondent replied that it believed that a strike
would be unlawful and in violation of a State Court
injunction. In addition, Respondent said that the strike
would not be covered, by the Taft Hartley Act and the
strikers might be subject to discharge without recourse
under law.
Respondent stated its intent to operate the plant during
the strike and added that any obligation the Company had
under the labor agreement would be terminated.
Respondent then read the statement concerning the status
of employee benefit plans that would be in effect during a
strike. With regard to vacations that statement read:
1. Employes on vacation at time strike commences may
continue on vacation status for period scheduled for
vacation, subject to vacation rules in effect at that time.
2. No other vacations will be granted during strike, and
vacations scheduled to commence during strike period
will be rescheduled following termination of strike.
991
The Union struck Respondent and began picketing
about the middle of the day on January 4, 1969. The
strike and picketing continued until February 20, 1969
when a final agreement was reached between Respondent
and the Union.
C. The 1969 Vacations
1. In general
Respondent carried out its longstanding policy
regarding vacations during time of strike, which it had
reiterated at its January 4 meeting with the Union. 168
employees began their 1969 vacations on December 30,
1968. The vacation periods of these employees extended
into the strike period but none of the vacations were
cancelled. 139 employees were scheduled to begin their
vacations on January 6. One of these was Willie M.
Bennett, Jr., the Charging Party. Bennett is a helper in
the dock department and as such he is included in the
Union's bargaining unit. He and 74 others had received
advanced vacation pay. The strike started on January 4
and all 139 had their vacations cancelled and rescheduled.
All advance vacation pay was later recovered by
Respondent. In subsequent weeks during the strike period
384 employees in the bargaining unit, who were scheduled
to have vacations begin during the strike, had their
vacations cancelled and rescheduled and all advanced
vacation payments had to be returned. The same policy
applied to employees and supervisors who were not in the
bargaining unit. During the strike period five clerical
employees, and 38 supervisors and other excluded
employees were scheduled to begin vacations. All these
vacations were cancelled and rescheduled.'
Respondent continued to operate its Port Arthur plant
and terminal during the strike at about 85 percent of
normal. Some of the employees in the Union's bargaining
unit did not strike but all employees were treated the
same with regard to vacations.
All cancelled vacations have been rescheduled and
vacation pay will be more than it would have been if the
vacations had been taken as originally scheduled, as the
new contract rates, which are higher than the old, will be
used in computing vacation pay.
2. Willie M. Bennett Jr.'s vacation
As noted above, Bennett's vacation was scheduled to
begin on January 6, 1969, the strike started on January 4,
and Bennett's vacation was cancelled. Bennett who was an
employee since 1946 was entitled to 5 weeks' vacation.
His vacation had originally been scheduled for April 7,
1968, but he traded with another employee for January 6
and the trade was approved by his foreman Floyd Reeves.
Bennett had requested that his vacation pay be advanced
and on January 3, 1969, he received four checks, one for
$379.30 which was a regular paycheck, another for
$265.45 which was for one week's regular work and one
week's vacation, another for $196.96 which was for two
additional weeks' vacation, and the last for $230.01 which
was for the final two weeks' vacation."
Bennett, who is a member of the Union and
participated in the strike, served on picket duty on about
'On January 31, Respondent had 3 ,658 hourly rated, 306 clerical
employees, and 790 supervisors at its Port Arthur plant and terminal.
"The record does not indicate what part of the $265.45 was for vacation
and what part was regular pay
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three occasions. On February 20, the date the strike
terminated, Floyd Reeves a docks foreman and Bennett's
supervisor, called Bennett to arrange a work schedule.
Bennett worked on February 21, and was off on February
23, 24, and 25. During that conversation Bennett asked
Reeves what the situation was concerning his (Bennett's)
vacation. Reeves asked if Bennett was satisfied and
Bennett replied that he was. Bennett in turn asked Reeves
whether the Company was satisfied and Reeves answered,
"Well, maybe the Company is satisfied. I don't know.""
On about February 26, Bennett had another
conversation with Reeves in which Bennett asked that his
vacation be rescheduled immediately. Reeves answered
that he could not schedule it to start at that time because
other vacations had been scheduled. Bennett and Reeves
then agreed on a vacation date starting on May 26'= Later
Bennett traded vacations with another employee so that
his 1969 vacation is now scheduled to run from December
1, 1969, through January 4, 1970.
On February 26, Bennett had a conversation with Joe
Lee, assistant to the superintendent of Respondent. Lee
told Bennett the vacation had been cancelled and that the
advanced money would have to be paid back. Bennett
asked how it would have to be paid back and Lee replied
by asking Bennett if it would be a hardship for him to pay
it back at one time. Bennett answered that it would be
and Lee asked if payments could be made on monthly
installments. Bennett asked if he could pay back $100
each payday (every other week) and Lee answered that he
would find out and let him know. Later that day Lee sent
a message to Bennett through Reeves that the $100 per
payday repayment would not be acceptable and that the
money would have to be paid all at one time."
On one occasion prior to the strike, Bennett had
received an overpayment from Respondent which had to
be repaid. In about July, 1968, Bennett had received
approximately $125 more than he was due. Lee spoke to
him about it and told him that he would have to pay it
back but that it could be repaid in 6 monthly installments
of $20 or $21 apiece. Bennett signed an authorization
allowing Respondent to withhold it from his pay and the
money was deducted.
"These findings are based on the testimony of Reeves . Bennett testified
that the conversation took place on February 21, when he called Reeves,
that Reeves asked him if he had received his vacation money and he
answered that he had; that Reeves asked him if he was satisfied with his
vacation and he answered that he was , and that Reeves said that if he was
satisfied the Company was satisifed and it could stay as scheduled. I credit
Reeves' version of the conversation It was no secret that vacations were to
be cancelled during the strike period The policy had been in effect for
many years and formal notification was given to the Union that the policy
would be carried out during the instant strike Even Bennett admits that in
his conversation with Reeves that he (Bennett ) said that there were rumors
that the vacations might have been cancelled . In that context I find it
difficult to believe that Reeves , who was a low echelon supervisor, would
take it upon himself to say that the Company was satisfied that Bennett's
vacation could stay as scheduled.
"Bennett testified that in this conversation Reeves told him that there
had been a change and there was a new ruling that Bennett would have to
pay back the advanced vacation pay and that another vacation would be
scheduled later in the year Reeves testified that it was Bennett who told
him that Respondent was withholding money and denied the rest of the
conversation . For the reasons stated above , I credit Reeves.
"These findings are based on the credited testimony of Bennett Lee
denied that he ever had a conversation with Bennett concerning the paying
back of vacation money . I do not credit Lee in this regard . As is discussed
below, Bennett had in the past repayed overpayments on an installment
basis so he knew that such a procedure was a possibility . Bennett
impressed me on the stand as a forceful, outspoken man. His testimony
that he tried to arrange for partial payments was convincing.
As noted above, the strike ended on February 20, 1969,
and Bennett returned to work the following day. He
worked for the next 5 weeks without receiving any pay.
His entire pay for that 5-week period was withheld by
Respondent to repay the vacation advance. Bennett did
not sign an authorization allowing Respondent to make
that withholding.
D. Analysis and Conclusions
1 The status of the strike
In N.L.R.B. v. Great Dane Trailers, Inc., 388 U S. 26,
the United States Supreme Court ruled that it was an
unfair labor practice for a company to deny vacation pay
to strikers while granting it to nonstrikers. In the instant
case, General Counsel seeks to extend the scope of that
ruling to apply to a situation where vacation together with
the accompanying vacation pay were denied to all
employees during a strike (except those who had
commenced their vacations before the strike). However, a
threshhold question is presented before that issue can be
reached. In Great Dane, the strike which occasioned the
cancellation of vacation pay was an activity which was
protected under the Act The logic set forth in that case
could have no application to a situation where a strike
was unprotected or unlawful. Therefore, the status of the
instant strike must be considered.
As set forth above, the contract between Respondent
and the Union dated January 18, 1967, did not have a
fixed termination date but was terminable on or after
January 1, 1969, upon expiration of 60 days written
notice. On November 11, 1968, the Union gave
Respondent a 60-day notice of termination which stated in
part: "This notice is also served in compliance with the
Labor Management Act of 1947 as amended
Section 8(d) of the Act provides:
. . Where there is in effect a collective-bargaining
contract covering employees in an industry affecting
commerce, the duty to bargain collectively shall also
mean that no party to such contract shall terminate or
modify such contract, unless the party desiring such
termination or modification -
(1) serves a written notice upon the other party to the
contract of the proposed termination or modification
sixty days prior to the expiration date thereof, or in
the event such contract contains no expiration date,
sixty days prior to the time it is proposed to make
such termination or modification... .
(4) continues in full force and effect, without
resorting to strike or lockout, all the terms and
conditions of the existing contract for a period of
sixty days after such notice is given or until the
expiration date of such contract, whichever occurs
later: . Any employee who engages in a strike
within the sixty day period specified in this subsection
shall lose his status as an employee of the employer
engaged in the particular labor dispute . . . but such
loss of status for such employee shall terminate if and
when he is reemployed by such employer.
Whether a strike is proscribed by Section 8(d) of the
Act can be determined by a mathematical computation. In
this case notice under Section 8(d) of the Act was given
on the date it was delivered to Respondent, November 11,
1968. Ohio Oil Co., 91 NLRB 759. Counting November
11 as the first of the sixty days, the last day on which the
Union would be forbidden by the statute to strike was
TEXACO INC. 993
January 9, 1969. It follows that the strike which
commenced on January 4, 1969, did not meet the
requirements set forth in Section 8(d). Such a strike is not
only unprotected under the Act but is unlawful. Fort
Smith Chair Company, 143 NLRB 514, enfd. 336 F.2d
738 (C.A.D.C.), cert. denied 379 U.S. 838. An employer
can take action against and even discharge employees who
participate in such a strike. In the Fort Smith case, supra,
the Board found no violation of the Act where an
employer discharged employees who struck in violation of
Section 8(d) of the Act, saying:
. we find that the Respondent's motive in discharging
the strikers is not a relevant consideration. The strike
here was an unlawful, and not merely an unprotected,
activity. (cases omitted) and by engaging in such a
strike, the employees `forfeited their rights to protection
of the Act.' Mackay Radio and Telegraph Company,
Inc.. 96 NLRB 740, 742-743.
In a similar vein in Publicity Engravers , Inc., 161 NLRB
221, the Board found that an employer did not violate
Section 8(a)(1) of the Act by offering higher wages to
employees to induce them to abandon a strike because the
strike was illegal in that the Union failed to give proper
notice under Section 8 (d) of the Act.
There is no contention and there is no evidence in the
record that the strike was protected in spite of Section
8(d) of the Act because its purpose was to protest serious
unfair labor practice on the part of the employer. Mastro
Plastics Corp. v. N.L.R.B. 350 U.S. 270. Nor is there any
contention that the unlawful element of the strike was
condoned by Respondent. The condemnation principle
applies only to unprotected as distinguished from unlawful
conduct. Mackay Radio and Telegraph Company, Inc., 96
NLRB 740; Clearfield Cheese Company, Inc, 106 NLRB
417; enfd. as modified 213 F.2d 70. Moreover, the
touchstone of any condonation theory is evidence that the
employer is "willing to forget and forgive" American
River Constructors, 163 NLRB 551, and there was no
such knowing forgiveness expressed or implied in the
instant case . Respondent 's position with regard to
vacations was the same before, during and after the strike.
Nor did Respondent mislead the Union into renouncing
the strike by creating the impression that the vacation
policy would be changed if the employees returned to
work.
Based on the above cases, I find that the strike which
began on January 4, was unlawful under Section 8(d) of
the Act. Even if it is assumed that Respondent's actions
with regard to its vacation-strike policy were intended to
undermine the strike, Respondent's conduct would not
have violated Section 8(a)(1) and (3) of the Act as alleged
in the complaint . It is not a violation of the Act to
undermine unlawful strike activity. The complaint does
not allege, as indeed it cannot under Section 10(b) of the
Act, that Respondent unlawfully applied similar vacation
policies to prior lawful strikes . This strike was unlawful.
Even if the strike were not unlawful under Section 8(d)
of the Act, it would still be an unprotected strike in
violation of contract and the same result would follow. As
set forth in the facts, the contract was still in effect at the
time of the strike. This contract contained a no-strike
clause that in effect required 90-day notice prior to a
strike. The notice sent by the Union to Respondent on
November 11, 1968, gave less than 60-day notice prior to
the strike. Though that notice does refer to a "previous
notice under Section Article XIV" (the no-strike clause),
there is no evidence of any previous notice. The General
Counsel has to establish that the strike was protected as
one of the elements of his case. When Respondent placed
in evidence the no-strike clause, the burden of going
forward with the evidence was upon the General Counsel
to establish that the provisions of the no-strike clause had
been met so that the strike could still be protected under
the Act. The General Counsel has failed to establish that
the strike was protected. McLean Trucking Company, 175
NLRB No. 66.
In the above analysis, I have assumed for the purpose
of discussion that Respondent's vacation policy was
motivated by a desire to undermine the strike. I find that
even with this assumption the complaint must be
dismissed because the strike was both unlawful and
unprotected. However, even if the strike were fully
protected by the Act, I believe that under the facts of this
case the complaint must be dismissed.
2. The legality of Respondent's vacation policy
The General Counsel has cited N.L.R.B. v. Great Dane
Trailers, Inc., supra; Star Expansion Industries , Corp.,
164 NLRB No 95, petition for review denied 409 F.2d
150 (C.A.D.C.), and Flambeau Plastics Corp v.
N.L.R.B., 401 F.2d 128 (C.A. 7), enfg. 164 NLRB No.
102. In all those cases, the Board and in some the Courts
found violations of the Act where an employer payed
accrued vacation pay to nonstrikers and failed to pay
vacation pay to strikers . However , gone of the cases dealt
with situations where the scheduling of vacations as
opposed to the payment of vacation pay was an issue. Nor
did they deal with situations where strikers and
nonstrikers were treated alike.
The fact that strikers and nonstrikers were treated alike
would not in itself be crucial. If an employer punished all
its employees because some of them joined a Union, the
fact that all the employees were treated alike would not be
defense available to that employer. However, in
considering what the Respondent 's motive was in the
instant case, it must be kept in mind that the real question
at issue deals with the scheduling of vacations and not
merely with the payment of accrued vacation pay. It is
undisputed that except for one instance which does not
apply to the present situation , vacation pay has always
been tied to the taking of time off from work for vacation
and has never been considered extra money due to the
employees . The agreement and practice between the
Respondent and the Union allows Respondent to use its
discretion to schedule vacations so as to suit the
convenience of the employee and to interfere least with the
Respondent's operation . In this context there is a distinct
difference between vacation time and strike time. In
vacation time the absence from work is timed to interfere
to a minimum degree with a company 's operation. For a
strike to be effective , the strikers' absence from work
must create a maximum interference with a company's
operation . Respondent continued to operate at 85 percent
of normal during the strike . It is apparent that during
such a situation, the fewer people absent from work for
any reason the easier it is for Respondent to continue its
operation . Respondent could not control absences due to
strike but under its contract and under past practice it
could control absences due to vacation . Vacations were
not merely cancelled but were rescheduled . Thus not only
were vacations scheduled for a poststrike time but
vacation pay that went with the vacations was larger than
it would have been if the vacations had been taken when
originally scheduled . This occurred because the calculation
of vacation pay would be based on the pay scale set by the
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract that followed the termination of the strike, which
included raises agreed upon by the parties
In N.L R B. v. Brown. 380 U.S. 278, the United States
Supreme Court held that to prove a violation of Section
8(a)(3) of the Act it had to be established that an
employer engaged in discrimination and a resulting
discouragement of union membership, and in addition had
unlawful intent. The Court also held that where an
employer's practices were inherently destructive of rights
guaranteed by Section 7 of the Act and did not serve an
important business end, no specific evidence of unlawful
intention was needed. The same logic was applied to
Section 8 (a)(1) of the Act. The Court pointed out that this
was simply an adaptation of the common law rule that a
man is held to intend the forseeable consequences of his
act. The Court went on to say:
When the resulting harm to employee rights is thus
comparatively slight, and a substantial and legitimate
business end is served, the employer's conduct is prima
facie lawful. Under these circumstances the finding of
an unfair labor practice under Section 8(a)(3) requires a
showing of improper subjective intent.
On the facts of this case, I am unable to find that
Respondent's conduct with regard to vacations during
strike was so destructive of employee rights or so
unrelated to a legitimate business interest as to warrant an
inference that Respondent's motives were unlawful. Nor
does the evidence in the record establish that such an
unlawful intent was present. In American Shipbuilding
Co. v NL.R.B., 380 U.S. 300, United States Supreme
Court said:
But we have consistently construed the section [8(a)(3)]
to leave unscathed a wide range of employer actions
taken to serve legitimate business interests in some
significant fashion, even though the act committed may
tend to discourage Union membership.
I find that Respondent's actions with regard to its
vacation-strike policy had only a minor impact on the
strike; did not significantly discourage membership in the
Union; was not intended by Respondent to do either; and
did serve a legitimate business interest in continuing its
operation.
3. The repayment of advanced vacation pay
The complaint alleges that Respondent violated the Act
by requiring the repayment of vacation monies advanced
to Bennett. However, Respondent has consistently
required the repayment of overpayments which were made
by mistake. I have found that the cancellation and
rescheduling of vacations in the circumstances of this case
did not violate the Act. It follows that the Respondent
could treat advanced vacation pay as an overpayment
made by mistake.
As indicated above, Respondent allowed Bennett to pay
a prior overpayment through partial monthly payments
which were each much less than his total pay. However,
after the strike the advanced vacation pay had to be
repayed through withholding of the entire pay for 5 weeks'
work If the strike were lawful, it could be argued that
this type of disparate treatment could be a violation of the
Act. However, nothing in the complaint places in issue
this aspect of the manner in which Respondent took back
the vacation advance. Indeed the evidence that
overpayments in the past were treated differently was
based on the testimony of Bennett which was objected to
by the General Counsel. I conclude that the issue was not
raised by the complaint so as to notify Respondent that it
had that allegation to meet. I therefore make no findings
with regard to that issue.
In conclusion, I find that the strike was unlawful under
Section 8(d) of the Act and was unprotected as a violation
of contract. In addition, I conclude that Respondent's
activities with regard to its strike-vacation policy did not
unlawfully interfere with employee rights under Section 7
of the Act or discourage membership in the Union. I
therefore recommend that the complaint be dismissed in
its entirety.
Upon the foregoing factual findings and conclusions, I
come to the following.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3 Respondent has not engaged in the unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and
conclusions , it is hereby recommended that the complaint
be dismissed.