Texaco Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1988

291 N.L.R.B. 525 (N.L.R.B. 1988)

TEXACO INC 525
Texaco , Inc and Office and Professional Employees
International Union, AFL-CIO, Local No 66
Case 23-CA-8923
October 31 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 16 1982 Administrative Law
Judge Hutton S Brandon issued the attached deci
sion The General Counsel filed exceptions and a
supporting brief and the Respondent filed a brief
in reply
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings and
conclusions' and to adopt the recommended
Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis
missed
I We adopt the judge s dismissal of the complaint for the reasons set
forth in the Board s decision in the companion case reported at 291
NLRB No 86 issued this day
Member Cracraft concurs for the reasons set forth in her concurrence
in the companion case
notice to or bargaining with their collective bargaining
representative by announcing at the advent of a strike by
its employees that on commencement of the strike pres
cheduled vacations would be canceled 2
On the entire record including by observation of the
demeanor of the witnesses and after due consideration of
the briefs filed by the General Counsel and Respondent
I make the following i
FINDINGS OF FACT
I JURISDICTION
Respondent is a Delaware corporation with offices and
plants in various States in the United States including
their place of business at Port Arthur Texas known as
the Port Arthur plant and terminal where it is engaged
in the manufacturing refining sale and distribution of
petroleum products The Port Arthur plant and terminal
is the only facility involved in this proceeding During
the 12 month period preceding issuance of complaint
Respondent in the course and conduct of its business op
erations manufactured refined sold and distributed
products valued in excess of $50 000 which products
were shipped from its Port Arthur plant and terminal di
rectly to points located outside the State of Texas The
complaint alleges Respondent in its answer admits and I
find that Respondent is now and has been at all times
material an employer engaged in commerce within the
meaning of Section 2(2) (6) and (7) of the Act
The complaint further alleges Respondent admits and
I find that the Union is now and has been at all material
times a labor organization within the meaning of Section
2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICE
Robert S Breaux Esq for the General Counsel
David R Shed Esq of Houston Texas for the Respond
ent
Harold Bosarge of Port Arthur Texas for the Charging
Party
DECISION
STATEMENT OF THE CASE
HUTTON S BRANDON Administrative Law Judge
This case was tried at Port Arthur Texas on August 5
6 and 12 1982 t The charge was filed by Office and
Professional Employees International Union AFL-CIO
Local No 66 (the Union) on May 19 and the complaint
was issued on July 1 The complaint alleged that Texaco
Inc (Respondent or the Company) violated Section
8(a)(5) and (1) of the National Labor Relations Act (the
Act) by unilaterally without notice to or bargaining
with the Union implementing on or about January 7 a
vacation policy affecting employees in a unit of employ
ees of Respondent represented by the Union The issue
presented is whether Respondent unilaterally changed
the conditions of employment of its employees without
I All dates are in 1982 unless otherwise stated
A Material Facts
It is undisputed that the Union is the collective bar
gaining representative of Respondents employees in a
unit of office employees of Respondent at its Post Arthur
plant and terminal The Union and Respondent were par
ties to collective bargaining agreements covering the unit
employees over the past several years The last such
agreement in effect before the events giving rise to the
instant case was effective by its terms for the period
from January 8 1979 through January 7 1981 but it
was subsequently extended to January 7 1982 3
Negotiations on a new collective bargaining agreement
to succeed the prior agreement as extended began in No
vember 1981 The negotiations continued up to and in
z This issue is identical to one presented involving Respondent and Oil
Chemical and Atomic Workers International Union AFL-CIO Local 4-
23 Cases 23-CA-8827 and 23-CA -8854 with which the instant case was
consolidated on motion to the General Counsel at hearing on August 5
The General Counsel s further motion made at hearing that the instant
case be severed for decision purposes was unopposed and granted An
order severing this case from the other number cases issued on Novem
ber 2 1982
a The unit description is not fully set forth in the collective bargaining
agreement Thus the agreement describes the unit only as that defined
and referred to in the decision of February 23 1944 of the National
Labor Relations Board (G C Exh 5)
291 NLRB No 87
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cluding a meeting between the parties which ended at
6 26 p in on January 7 but were unsuccessful At that
time the Union announced that if the Company was not
agreeable to a contract extension they would take strike
action at 12 01 a in when the contract extension in effect
at that time would expire Respondent through its repre
sentatives at the meeting stated it was unwilling to
extend the contract Respondents representatives how
ever related that while it was not necessary to hold a
shut down meeting with the Union as it was doing
with other collective bargaining representatives in other
units 4 they would want to meet with the Union later in
the evening to cover certain areas that needed to be cov
ered in the event of a strike Accordingly the parties
agreed to reconvene later in the evening
At the reconvened meeting Respondent inquired if it
was still the Union s intent to strike at midnight and the
union representatives replied affirmatively Respondent s
superintendent of labor relations J M Lee then distrib
uted to the Union s employee negotiating committee a
document entitled Employee Relations Procedures in
Case of a Strike which contained inter alia the follow
mg provision regarding vacations
Employees on vacation when a strike commences
may continue on vacation status for the balance of
the week in which the strike occurs subject to the
vacation rules in effect at that time
No other vacations will be granted during a
strike and vacations scheduled to commence during
the strike period will be rescheduled following ter
mination of the strike
It is undisputed that the strike began on January 8 and
was ongoing at the time of this hearing Vacations that
had been scheduled for specific periods in 1982 for each
employee were canceled at the beginning of the strike
The foregoing is established through admissions of Re
spondent as well as the minutes of the meetings between
the Union and Respondent on January 7 5 The minutes
of the January 7 meetings do not reflect any specific pro
test by the Union to Respondents action regarding vaca
tions However Rodney Hebert president of the Union
and a participant in the negotiating meetings testified
here that some question was raised concerning vacation
and other benefits Hebert then testified that Jack Lang
ford an International representative of the Union who
was present in the meeting mentioned that there had
been some decisions handed down that allowed such
payment of vacation pay Nevertheless J M Lee the
principal spokesman for Respondents negotiating com
mittee replied that the Company s policy was that vaca
tion pay would not be paid during the time of the strike
Subsequently after the occurrence of the strike in Janu
ary and during another meeting with Lee on March 20
Hebert testified that Lee was provided with a copy of a
4 Negotiations with other unions on other employees units at the Port
Arthur plant and terminal were taking place concurrently with these ne
gotiations It appears that the various collective bargaining agreements
had identical termination dates
S GC Exh 4
news article regarding a court decision 6 and an NLRB
decision? holding to the effect that in the circumstances
of these cases accrued vacation time had to be paid strik
ers Hebert testified that Lee responded that he would
take the matter under advisement and get back with
them at a later date Respondent however did not there
after change its vacation policy as announced on January
7 Moreover vacation pay for the strikers was not there
after discussed between the parties during the strike
Hebert conceded that Respondents policy regarding va
cations during the strike which was contained in the dis
tribution in the second meeting with the Union on Janu
ary 7 was not a new policy and on the contrary had
been in existence to his knowledge during the 15 years
that he had been employed by Respondent
Vacations were provided for in article VIII of the col
lective bargaining agreement Section A of that agree
ment for vacations to employees after 1 year of contin
ous service on a graduated basis based on their length of
service 8 Section B provided that the administration of
vacations would be governed by the vacation rules of
the Company currently in effect Those rules9 in turn
provided at article VI section A(2)
No particular time of the year is designated for va
cations It is left to the discretion of the Company
to arrange the time of vacation to best suit employ
ees convenience and least interfere with the Com
pany s operations As far as practical employees
wishes as to the date of vacations will be consid
ered however it must be recognized that no con
siderable number can be absent at one time and that
it may not always be possible to grant vacation at
exactly the desired date
B Contentions of the Parties
The General Counsel contends that Respondent gave
insufficient notice to the Union of any impending
changes regarding vacation policy and such insufficient
notice amounted to no notice at all There was no mean
ingful opportunity for bargaining with the Union and
Respondent indicated no flexibility on the issue of vaca
tion cancellation In further arguing the 8(a)(5) violation
here the General Counsel relies heavily on the decision
of the Board in Stokely Van Camp 259 NLRB 961
(1982) In Stokely Van Camp the Board found violations
of Section 8(a)(1) (3) and (5) of the Act in the employ
er s unilateral determination contained in an announce
ment before the beginning of a strike that would cancel
all scheduled employee vacations and withhold payment
of vacation benefits In reaching its conclusion the Board
relied on the facts that showed (1) respondent canceled
vacations and withheld vacation pay from employees
before the commencement of the strike and before it
6 NLRB v Westinghouse Electric Corp 603 F 2d 610 (7th Or 1979)
enfg 237 NLRB 1209 (1978)
' Thorwin Mfg Co 243 NLRB 620 (1979)
83 C Exh 5
9 R Exh 1 There was no provision for payment of vacation pay in
lieu of time off and there was no showing of a practice in this regard
although at the conclusion of some prior strikes Respondent and the
Union had negotiated some instances of payment in lieu of vacations
TEXACO INC 527
could be determined that a strike actually was going to
take place (2) vacation benefits had consistently been
provided by the employer on a regular basis in the past
to employees on leave of absence and sick leave immedi
ately before the start of their scheduled vacation (3)
there was independent evidence of union animus indicat
ing that the cancellation of vacations was designed to pe
nahze the strikers and (4) the employer was not empow
ered by either the collective bargaining agreement or
past practice to refuse to pay earned vacation benefits
Regarding the 8(a)(5) violation the Board concluded
that Respondent had not notified the Union about the
cancellation of vacations and withholding of vacation
pay Accordingly by unilaterally canceling employee va
cations and withholding and deferring payment of vaca
tion benefits the employer breached its bargaining obli
gation with the Union in violation of the Act
The General Counsel argues that Respondents reh
ance on its past practice of canceling and discontinuing
and rescheduling vacations during prior strikes is mis
placed because the Union here had shown that it would
not countenance any further actions in this regard More
over in response to any argument of a waiver of the
Union of its right to bargain concerning cancellation of
vacations the General Counsel asserts that the Union
forcefully pressed the legal issue of an unlawful with
holding and denial of vacations since the announcement
by Respondent on January 7
Respondent in its brief asserts that it made no changes
in the vacation plan itself and describes its conduct con
cerning the vacation plan as merely an announcement of
procedures relative to administrative and nonsubstan
tive aspects of the plan Respondent argues that under its
interpretation of the labor agreement which incorporat
ed the vacation plan and its interpretation of the plan
itself Respondent was entitled to take the action it did
regarding vacations
Respondent points out that its action in the instant case
with respect to announcing the canceling of vacations
was entirely consistent with its conduct in similar situa
tions over the past 30 years and which conduct had been
specifically found by the Board to be lawful in Texaco
Inc 179 NLRB 989 (1969) which involved Respondent
at the same location involved here In Texaco Inc
supra the General Counsel had urged under similar cir
cumstances that Respondent had violated Section 8(a)(1)
and (3) of the Act by conduct identical to that in the in
stant case There Respondent advised the Union that no
vacations other than those that had already begun would
be granted during a strike and that vacations scheduled
to commence during a strike period would be resched
uled following termination of the strike An individual
employee Bennett whose vacation had previously been
scheduled to begin after the strike was even required to
pay back the advance vacation pay he had received The
administrative law judge in his decision adopted by the
Board described the essential issue in the case as dealing
with the scheduling of vacations and not merely with
the payment of accrued vacation pay Id at 993 On
this basis the administrative law judge distinguished the
case from NLRB v Great Dane Trailers 388 US 26
(1967) Flambeau Plastics Corp v NLRB 401 F 2d 128
(7th Cir 1968) The administrative law judge noted that
as here vacation pay had always been tied to the taking
of time off from work for vacation and had not been
considered extra money due to the employees More
over he noted that the agreement and practice between
Respondent and the Union there allowed Respondent to
use its discretion to schedule vacations so as to suit the
convenience of the employee and interfere least with re
spondent s operation He thus found no discrimination in
violation of Section 8(a)(3) and (1) of the Act in Re
spondents canceling of the prescheduled vacations and
the requiring that advanced vacation pay be returned
In light of the Board s decision in Texaco Inc supra
finding its prior conduct lawful Respondent argues that
the Union s acquiescence in this procedure over many
years amounts to a waiver of any rights the Union might
have had to bargain with Respondent over cancellation
and rescheduling of vacations
C Discussion and Conclusions
It is a well established principle of law that an employ
er with an outstanding bargaining obligation cannot um
laterally alter or change an existing benefit which consti
tutes a mandatory subject of bargaining without prior
notice to or bargaining with the Union See Sherwin
Williams Co 260 NLRB 1231 (1982) Curley Printing
Co 169 NLRB 251 (1968) Moreover mandatory sub
jects of bargaining previously provided for under a col
lective bargaining agreement may not be unilaterally
changed without giving notice to and negotiating with
the Union even where the bargaining agreement has ex
pired See Hinson v NLRB 428 F 2d 133 (8th Cir 1970)
Vacations and vacation pay is clearly a mandatory sub
ject of bargaining See Robbins Door & Sash Co 260
NLRB 659 (1982) Stokely Van Camp supra Thus criti
cal to the determination of a refusal to bargain violation
of the Act here is a conclusion whether there was a
change in Respondents vacation policy I conclude there
was no change
Respondent under its vacation plan adopted by the
collective bargaining agreement allowed Respondent to
schedule vacations so as to least interfere with its oper
ations Regarding this authority of the Company the ad
ministrative law judge noted in Texaco Inc supra at
993
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 mini
mum degree with a company s operation For a
strike to be effective the strikers absence from
work must create maximum interference with a
company s operation 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 con
trol absences due to strike but under its contract
and under past practice it could control absences
due to vacation Vacations were not merely can
celed but were rescheduled
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accordingly the administrative law judge and the Board
found that Respondent had a contractual right to sched
ule vacations
Moreover aside from the collective bargaining agree
ment Texaco Inc supra establishes Respondents past
practice of many years in exercising its right to resched
ule vacations on commencement of a strike The Union
had never questioned that right Based on the uncontra
dicted and credible testimony of Union President Hebert
Respondents policy regarding rescheduling vacations at
the commencement of a strike had been in existence for
the 15 year period he had been employed by Respondent
up to the time of the strike Respondents action here
was clearly consistent with past practice and the conclu
sions reached in Texaco Inc
Even the Union s action reveals to a degree its ac
knowledgement of Respondents right to cancel and re
schedule vacations in view of the strike Thus the Union
did not specifically request that Respondent bargain
about its actions Rather the Union vaguely referred to
recent decisions which raised questions about the le
gality of the cancellation and rescheduling of vacations
However it was not until more than 2 months later that
the Union ever specified those cases to Respondent
Moreover examination of these cases show them to be
inapposite to the refusal to bargain contention here
Thus in Westinghouse Electric Corp supra an 8(a)(1) and
(3) violation was found premised on the employers dif
ference in treatment regarding vacation benefits accord
ed strikers on one hand and nonstrikers and returning
strikers on the other There was no such difference
shown in the instant case Similarly in Thorwin Mfg Co
supra an 8(a)(1) violation was found in the employee s
denial of accrued vacation benefits to strikers as a conse
quence of their participation in a strike There was no
denial of such benefits shown in the instant case only a
postponement of vacations Accordingly neither of the
cited cases establishes the unlawfulness of Respondent s
actions here regarding vacations The cited cases serve
to show however that the Union s claim of illegality in
Respondents implementation of its vacation policy was
based on its belief that Respondents action was discnmi
natory to strikers rather than on a belief that Respondent
departed from the collective bargaining agreement or
past practice
Stokely Van Camp supra cited by the General Coun
sel here is closer on the facts to the instant case and the
violation alleged As already noted in that case an
8(a)(5) violation was found in the employers unilateral
action in cancellation of vacations in the face of a strike
threat Also an 8(a)(3) and (1) violation was found be
cause the evidence revealed and the Board concluded
that Respondents action was neither allowed by the col
lective bargaining agreement or past practice and addi
tionally there was independent evidence that the em
ployer s actions were taken in retaliation against the
Union and in an attempt to discourage its employees
from engaging in the strike Stokely Van Camp however
is distinguishable from the instant case I conclude be
cause here Respondent as the Board found in Texaco
Inc supra was unlike the employer in Stokey Van
Camp empowered by both the collective bargaining
agreement and a past practice covering many years to
take the action it took
Considering the foregoing and particularly the
Board s decision in Texaco Inc supra which has not
been overruled and by which I am bound I find Re
spondent did not unilaterally change its vacation plan
policy or benefits and therefore did not violate Section
8(a)(5) and (1) of the Act as alleged in the complaint
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com
merce within the meaning of Section 2(2) (6) and (7) of
the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 The Respondent did not violate Section 8(a)(1) and
(5) of the Act as alleged in the complaint in canceling
prescheduled vacations for employees at the commence
ment of the strike on January 8 1982
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
edio
ORDER
The complaint is dismissed in its entirety
If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses