Vensuvius Crucible Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1279 (N.L.R.B. 1980)

VESUVIUS CRUCIBLE COMPANY
Vesuvius Crucible Company and United Steelwork-
ers of America, District 15, AFI.-CIO-CIC.
Case 6-CA-10561
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MI:MBERS
JENKINS AND PENEI.I.O
On August 18, 1978, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed cross-exceptions to the Administra-
tive Law Judge's Decision and a brief in opposition
to the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.'
The complaint alleges that Respondent violated
Section 8(a)(3) and (1) of the Act by denying ac-
crued vacation benefits to striking employees for
work done by them prior to the strike. The Admin-
istrative Law Judge dismissed the complaint be-
cause he found that the strikers had not accrued
any vacation benefits. The General Counsel except-
ed to this finding, arguing that the strikers in fact
accrued a pro rata share of vacation benefits for
time worked in 1976 in accordance with the provi-
sions of the contract then in effect, and that Re-
spondent unlawfully withheld these benefits be-
cause of the strike. For the reasons fully set forth
below, we find merit in the General Counsel's ex-
ceptions and reverse the Administrative Law
Judge's Decision.a
Respondent and the Union were parties to
successive collective-bargaining agreements, the
most recent running from November 1, 1973, to
October 31, 1976. During September and October
1976 the parties met to negotiate a new agreement.
The proposals made during these negotiations in-
cluded, inter alia, proposed modifications of the va-
I At the nearing Respondent moved to have this case deferred to arbi-
tration. The Administrative Law Judge denied Respondenl's monlion In
its cross-exceptions Respondent reiterated its requels for deferral We
agree with the Administrative Law Judge and ill not order deferral As
the Administrative Law Judge noted, allhough resolution of the dispute
here requires resort to the collectlive-argaing agreement. the issue as
pleaded-whether Respondenl, b denying vacallion henefit,, has inter-
fered with he basic stalutors right, of the employees- is an issue vsar-
ranting determination by this Board See (Ienral 4merir-wan 'rawiporiaton
Corporation, 228 NLRB 8)0 (1977)
252 NLRB No. 179
cation benefits provisions of the contract-Respon-
dent sought to reduce these benefits; the Union
sought to expand them. The parties were unable to
conclude a new agreement by the October 31 expi-
ration date. At that time, Respondent refused to
extend the expired contract for an additional 90
days and insisted that the employees work under
the terms of its last proposal. On November 1,
1976, the Union commenced an economic strike.
From that time until at least the conclusion of the
instant unfair labor practice hearing on March 3,
1978, the striking employees have not returned to
work.
On June 28, 1977, just prior to the time at which
Respondent annually would close its plant and re-
quire the employees to take their vacation if they
had not already done so, the Union requested vaca-
tion pay for all eligible employees based on work
done by them for the 10 months, i.e., January-Oc-
tober 1976. before their strike. Respondent sent a
letter to the Union stating that under its interpreta-
tion of the collective-bargaining agreement. the
strikers were not entitled to such benefits. The
matter of vacation benefits is governed primarily
by the parties' collective-bargaining agreement.
The relevant provisions of which are attached
hereto as Appendix A.
Respondent's practice regarding vacation bene-
fits was to grant a paid vacation based on an em-
ployee's previous year's work. Thus, for example,
employees who worked in 1975 were, as a result of
their working during that year, entitled to schedule
a vacation for sometime between January I and
December 31, 1976. The amount of vacation pay
granted to employees for this 1976 vacation was
based on a percentage of their 1975 earnings. (See
contract, sec. VII,D.) However, to protect employ-
ees who were absent due to illness for more than
half of the calendar year and, as a result, may have
had insufficient earnings on which to base vacation
pay, the contract provided for a minimum pay-
ment. (See sec. VII,D, par. 3.) In addition, when-
ever Respondent scheduled a company shutdown
(usually in June), the contract required the employ-
ees to use some of their earned vacation at that
time. (See contract, sec. VII,C.) The contract did
not permit employees to carry over earned vaca-
tion time into a subsequent year. With respect to
vacation pay in lieu of taking a vacation, the con-
tract stated that the purpose of the vacation bene-
fits was to provide the employees with annual peri-
ods of rest and relaxation, although Respondent re-
served the right to require an employee to work
during his scheduled vacation, in which case that
employee would receive vacation pay in addition
to regular wages. (See contract, sec. VII,E.) In ad-
1279
DECISIONS OF NATIONAL LA3()R RELAT'IONS 3()ARD
dition, Respondent had a policy-which was not
embodied in the contract-that required its em-
ployees to he working during the year in which
they took their vacations in order to receive the
vacation benefits earned the previous year.
Based on the foregoing benefit policy, the Gen-
eral Counsel claimed at the hearing that the strik-
ing employees who worked between January I and
October 31, 1976, were entitled to pro rata vacation
pay in 1977 based on their 1976 earnings. 2 The
General Counsel contends that the demand for
these benefits was properly made in June 1977, as
that was the time of Respondent's annual shut-
down. To support this contention, the General
Counsel elicited testimony regarding Respondent's
past treatment of certain employees who in previ-
ous years had received pro rata vacation pay based
on only a partial year's work. Thus, the record
shows that John Palombo, who was injured in
April 1975, was absent the remainder of that year,
and worked a total of 11 days in 1976, received a
check in January 1977 for vacation pay based on
his 4 month's work in 1975. Edward Pelc, who
became disabled in June 1975, did not work the re-
mainder of that year or in 1976, but received vaca-
tion pay based on his partial work performed in
1975. The record shows that Respondent made
similar pro rata payments to employees Lawrence
Chancio and Corey Peralla who, due to injuries,
also did not work a full 12 months in 1975.
Respondent defended its refusal to give vacation
pay here on several different grounds. First, Re-
spondent claimed that vacation benefits were de-
pendent on the contract and were expressly limited
to the term of the contract.:' Thus, Respondent
argued that the expiration of the contract on Octo-
ber 31, 1976, 2 months before the conclusion of the
calendar year, precluded the employees from ac-
cruing a right to any vacation pay for 1976. More-
over, in the absence of a contract at the time of the
Union's demand in June 1977, Respondent contend-
ed that there was no basis on which to compute
the amount of vacation pay for each employee. Re-
spondent further argued that, even if the contract
was still in existence, the employees were not enti-
tled to benefits since, under Respondent's policy,
an employee had to perform some work in the year
he or she was to take a vacation in order to receive
' We note that in January 1977, in response to a grievance filed by the
Union, Respondent granted vacation pay based on 1975 earnings to those
strikers who had scheduled vacations for November or December 1976,
but, due to the strike, were unable to take these scheduled vacations.
:' Respondent pcmints to sec VIA, which speaks of emploees being eli-
gible for vacation "in any calendar year during the term of this agree-
ment" and sec VII,B, which refers to the attainment of various lengths
of service with Respondent "on the anniversary of his employment with
the conmpany, during the term of this agreement "
the vacation benefits for the prior year's work. 4 As
the striking employees performed no work in 1977,
Respondent contended that, under this require-
ment, they were not entitled to any vacation pay
for 1976 work. Also, at the hearing, Respondent
relied on section VII, D, of the contract, which, as
noted above, appears to require employees to take
their earned vacation in order to receive vacation
pay. In this regard, since the striking employees
sought vacation pay without taking a conventional
vacation in 1977, Respondent contended that, for
this reason as well, the striking employees were not
entitled to vacation benefits. 5
Aside from this, Respondent sought to refute the
General Counsel's contention that its payment of
vacation benefits to employees Palombo, Pelc,
Chancio, and Perella indicated that all its employ-
ees accrued vacation benefits in accordance with
their previous year's work. Specifically, Respon-
dent contended it only made the pro rata payments
to Pelc, Chancio, and Perella because it was com-
pelled to do so by an arbitrator's decision dealing
with health insurance benefits. 6 With respect to Pa-
lombo, however, Respondent did not contend that
such payments were mandated by any arbitration
award. But, while cross-examining Palombo, Re-
spondent's counsel suggested that Palombo would
not have received the pro rata payments were it
not for the fact that his partial work in 1975 was
due to his injury and hence he was entitled to
benefits under the illness exception set forth in sec-
tion VII, D, paragraph 3, of the contract. As noted
4 As noted, this requirement does not appear in the parties' contracl
However, with respect to Respondent's purported reliance on Sec
Vii, ). the record discloses instances, aside fronm these where Respon-
delit requested all employee to work during a vacation, in which employ-
ces received vacation pay without having to take a scheduled vacation
Thus, w hile it is not covered in the contract. Respondent admitted that
laid-off employees who, because of a layoff, were unable to take their
scheduled acationls have still received vacation pay Similarly, as noted
in fn. 2, vupru, certain striking employees herein received vacation pay
for 1975 work even though, as a result of their strike, they were unable
to take their acations scheduled for November or December 1976. Fi-
nally. Respondent noted that it has granted vacation pay to employes
who were absent from work due to illness where the illness prevented
them from taking their scheduled vacation.
A copy of this arbitration decison was received in evidence. This de-
cision resulted from a grievance filed by two employees who claimed
that they were wrongfully denied health insurance benefits as provided in
the 1965 insurance agreement. Both employees went on workmen's com-
pensation as a result of a plant injury during 1975. Neither employee re-
turned to work during the remainder of 1975 or in 1976. They were
given health insurance benefits as employees on sick leave status On July
24. 1975. Respondent laid off a number of employees. Soon after, the lay-
offs reached a pint onI the seliority roster which would have included
the grievants had they been at work. At that point. the grievants stopped
receiving the insurance as Respondent treated them as laid-off employees
rather than injured employees. The arbitrator agreed with Respondent's
termnilation f the payments insofar as the grievants would have been laid
off and ineligible fr the health benefits had they not been injured How-
ever. the arbitrator emphasized that, when the recall of the laid-off em-
ployees reached the seniority level of the grievants the grievants must
theni receive insurance benefits as employees who are ill. niot laid off.
1280
VIESLIVI'LS CRICIIE C()OMPANY
earlier, under that section employees who were
absent because of illness for more than half of a
calendar year and, as a result, may have had little
earnings on which to base vacation pay, still re-
ceived a minimum payment. From this, Respondent
contended that its payments of vacation benefits to
employees who only worked a partial year because
of illness or injury did not represent a general
policy under which employees accrued benefits as
they worked.
The Administrative Law Judge ruled in favor of
Respondent and dismissed the complaint. First, the
Administrative Law Judge noted that if the em-
ployees had accrued vacation benefits under the
contract for work done in 1976, the employees' ab-
sence from work because of the strike could not
lawfully be relied on as a basis for denying the
benefits. 7 Thus, had benefits accrued, Respondent
could not have denied vacation benefits because, as
a result of striking, the employees were unable to
comply with Respondent's requirement that they
had to have performed some work in 1977. How-
ever, the Administrative Law Judge concluded
that no vacation benefits accrued before the con-
tract expired on October 31 and that, without an
existing contract, the employees could not have ac-
crued any vacation benefits after that date. In this
regard, the Administrative Law Judge emphasized
that the expired contract specifically limited the
grant of vacation benefits to its term and that the
past practice of the parties strongly suggested that
the employees have not accrued vacation benefits
for work done under the last 10 months (January-
October 31) of any of the collective-bargaining
agreements negotiated between Respondent and the
Union. Specifically, the Administrative Law Judge
relied on the circumstances surrounding the con-
tract preceding the one discussed herein, which ran
from 1970 to October 31, 1973. As shown by the
record, when that contract expired, the parties ne-
gotiated the November , 1973-October 31, 1976,
agreement which provided increased vacation
benefits for the employees. Employees who took
vacation in the 1974 calendar year received the in-
creased benefits contained in the 1973-76 agree-
ment. According to the Administrative Law Judge,
this past practice demonstrated that the employees
did not accrue vacation benefits as they worked in
1973 for, if they had, Respondent would have been
more likely to compute 1974 vacations in accor-
dance with the terms of the 1970-73 contract. 8 Ac-
7 See, eg. Knuth Bros. Inc. 229 NLRH 12(04 (1977); El/mac Corpora-
lcon. 225 NLRH !188 (197h), Russel/ Spors-ar (Crporatio,, 197 NLRKB
1116 1972); F'icA (Comnpanl. 161 NLRH 108( (966)
n In reaching this rsult, the Administrali e las Judge did rnt specifi-
cally consider the evidence shsw ing thal RespondLenl had in he piast
granted pro ral vacatlion py based ot an e nlployee's partllal ork II1 the
cordingly, in the absence of accrual, the Adminis-
trative Law Judge concluded that the employees
were not entitled to any vacation benefits and dis-
missed the complaint." The General Counsel ex-
cepts to this conclusion.
Contrary to the Administrative Law Judge, we
agree with the General Counsel and find that Re-
spondent violated Section 8(a)(3) and (1) of the Act
by denying the striking employees their accrued
vacation benefits.
It is well settled that employees participating in a
lawful strike retain their statutory status as employ-
ees. And an employer may not equate strike time
with other forms of unexcused absence to deny
strikers their accrued benefits. To do so would im-
permissibly penalize employees for engaging in
protected activity. ' Here, Respondent admittedly
refused to grant vacation benefits to the strikers be-
cause, as a result of their strike, they were absent
from work in 1977. The Administrative Law Judge
properly noted that Respondent could not lawfully
require the employees to be at work-and forego
their strike-in order for them to receive benefits
which they had already accrued. However, the
Administrative Law Judge found, as Respondent
argues, that the strikers had not accrued any vaca-
tion benefits before striking on November , 1976.
We cannot agree.
By setting vacation pay at a fixed percentage of
an employee's prior year's earnings, the vacation
benefit provisions of the contract established that
vacation pay was given for the performance of
work during the previous year. " The amount de-
pended upon the amount of work done, and thus
was in the nature of wages earned, the payment of
which was deferred for the Employer's conve-
nience to some scheduled time the following year,
usually the vacation shutdown period. 12 Notably,
the contract itself, in section VII,C,5, denominates
vacation as "earned." Under these circumstances,
we think it clear that the striking employees who
worked in 1976 prior to the commencement of the
strike on November 1, accrued the right to receive
previous year However, the Administrative Law Judge did indicate thai.
contrary to Respondent's contention. those pro rala payments scre not
mandated by the arbitrator's decision submitted in evidencee in this
regard, the Administrative Law Judge commented that the arbitratlors
decision did not deal with the issue presented in this case
As nioted. upmr. the Administrative Law Judge denied Respotndenl't
rttiln to defer this case to arhitration
mr See cases cited in fit 7, upru
Specifically, Lunder the colntract, acation pay swas computed at 2
percent of an employe's pro iolus year's earnings for each vacation week
taken The number f allou. ahle vacatilt ueeks was determined by an
emploeec's length of sers ice
I The contract prolided that the more senlior emploeles. entitled
longer ,acilions, had to use onl 2 eeks of their earned acatlln at
,huttdon lilce The,, et mployee ere expected to cherdule their remain-
ing lacillll teC during thalt clendar ealr
1281
DECISIONS ()F NATIONAL L.AB()R RLI.ATIONS BOARD
a pro rata share of vacation benefits for the 1976
work period. ':"
Respondent's treatment of employees Palombo,
Pelc, Chancio, and Perella bears this out. These
employees all worked less than 12 months in 1975,
yet they each subsequently received a pro rala
share of vacation pay based on 1975 earnings. Re-
spondent's attempt to minimize the significance of
the pro rata payments to these employees is not
persuasive. Respondent was not, as it claims,
forced to make these payments because of the arbi-
trator's decision submitted in evidence. That award
dealt only with the right of disabled employees to
receive disability benefits from the time that they
would have been recalled from layoff status if
healthy.' 4 The award did not directly or by anal-
ogy deal with vacation benefits; it did not touch on
any of the issues here; and it in no way obligated
Respondent to grant pro rata benefits for the past
work done in 1975. Similarly, Respondent's pro
rata payment to employee John Palombo cannot be
explained as an aberration authorized by the illness
exception set forth in section VII, D, paragraph 3
of the contract. In this regard, upon reviewing Re-
spondent's payroll records, which included compu-
tation for vacations, minimum payments under the
illness exception were computed differently than
regular vacation pay. In Palombo's case, the pay-
roll records indicate that Palombo's vacation pay,
which was based on his 4 months of earnings 'in
1975 was not, as Respondent contends, computed
as an illness exception but was computed as regular
vacation pay. Consequently, we cannot, as Respon-
dent urges, minimize the significance of these pro
rata payments. Absent a satisfactory explanation, it
appears that these pro rata payments were made in
accordance with what the contract plainly pro-
vided; namely, they were deferred compensation
for work already performed. As with earnings, em-
ployees accrued these benefits as they worked.' 5
1:1 Significantly, unlike other vacation benefit policies, this plan did not
contain a provision requiring employees to work some requisite payroll
period within each calendar year before accruing ally acation benefits
for time already worked See, e.g . rick Company, 161 NLRB 1089, 110)8
(1966), enfd. in part 397 F.2d 956 (3d Cir. 1968) (emiployees required to
work 75 percent of the payroll periods i each calenldar year); L.R.H B.
v Duncan Ibundrv and Machine IWorks. Inc., 435 F 2d h12 (7th Cir.
1970). efg 176 Nl.RB 23 (1969) (enmploees required to work 0h) per-
cent of the pay periods in a calendar year). See also N.L. .HB Knlth
Brothers. Inc.. 584 F.2d 13, fit. h (7th Cir 1978), efg 229 NLRB 12()4
(1977)
14 See fn 6. upru
is Cf No/de Brothert, Inc v. ocal No. 358, Baker & Ctonfetionerrr
Workers Union. AL -CIO. 430 US. 243. fit. 4 (1977) deternlilinig the
level of a contrac benefit ot, the basis of a employee's length f em-
ployment and the aount of his salary supported the ulionl's claim that
the benefit was deferred compeisation fr past work) See ldso l.oual
Union No. 186. U'nited PuAckilghouse FIood uaid 41/ed l'riers, .11-1. CIO
v Arlmour and ('omlpany. 446 F.2d 61(. 612 (6th Cir 1972); lIx-aun i/i-
huui'n Company. 172 NRBI 851. 89 (1968), ertfd 419 F 2d 1262 (5th
Without addressing the foregoing the Adminis-
trative Law Judge agreed with Respondent's con-
tention that no vacation benefits accrued in 1976
because the contract--which expressly limited va-
cation benefits to its term-expired before the end
of the 1976 calendar year and before the employees
were scheduled to take their earned vacation. In
this regard, the Administrative Law Judge appar-
ently found that after the contract expired on Oc-
tober 31, 1976, Respondent was freed of its obliga-
tion to grant vacation benefits for any 1976 work
since there was no longer any contract providing
for the accrual of, or mandating the payment of,
such benefits. Both Respondent and the Adminis-
trative Law Judge miss the point. The strikers here
seek vacation benefits only for work performed
during the term of the contract. Thus, as explained
above, these benefits accrued before the contract
expired. That no contract providing for vacation
benefits existed in November and December 1976 is
of no moment since the strikers did not need to
work and accrue benefits in those 2 months in
order to earn a right to receive a share of vacation
benefits for work already performed that year.' 6
Having accrued vacation benefits under the con-
tract these benefits remained vested even after the
contract terminated. To find otherwise would
ignore the salient fact that even after a contract ex-
pires, provisions providing for accrued benefits and
the manner in which they are computed, continue
to "live on" and govern by operation of law. 1'7
Cir. 1969) (vacation benefits were keyed to earnings and thus based di-
rectly on all emplyee's work corintributtion)
' Respondenit implicitly admitted as much with one oif its many expla-
nations for denying these benefits. In this regard. in Respondent's letter
to the Union on June 28, 1977 in which it refused the Union's request for
the acation benefits, Kcspourdent quoted sec. VII.H.I of the contract
and then stated that the sectionll only required vacation benefits "for the
three years which constituted the 'term of this agreement "' The meaning
of this was clarified at the hearing by vice President of Finance Mayer
liHe testified that he instructed Respondent's attorney lt inform the Union
ih 1977 that no vacation benefits could be paid because. without a negoti-
ated contract there was no basis on which to calculate the benefits
From that testimuony, it is apparent that even Respondent recognized that
the striking employees earnted some vacation benefits in 1976, but that
without the contract it assumed that it could not compute the amounts of
such benefits to be paid As discussed above. Respondent's assumption
was wrong
7 Conlsistenlt with the policy underlying Sec. 8(a)(5) of the Act, during
nlegiotiations al employer must preserve the status quo and refrain from
unilaterally abrogating benefits accrued under the recently expired con-
tract. See, e.g. Sargent- Welch Scientific Company. 208 NLRB 811 .121, fn
33 (174), where the Board stated
Although it had expired before vacations were cancelled, the old
cotntract still governed the due date of vacation benefits to the extent
contract. Moreover, until modified by mutual consenlt or by the em-
ployer fter a impasse il bargaining, all the ternms of the old cn-
tract pertalm ig to eploee hbenefits remained il effect by peration
of law
Furlthernilore. our conclusion hereill is not rebutted by the manner in
which Respondent conlpuled acation benefits in 1974 At that time the
parties inegotiated the instant contract which ran front November 1,
Continued
1 282
1283
Given the foregoing, we are unable to agree
with the Administrative aw Judge's Decision to
dismiss the complaint. The strikers worked from
January to October in 1976 and in so doing ac-
crued a right to a deferred payment of vacation
benefits based on their 1976 earnings. In refusing to
grant their benefits in 1977 because the employees
struck rather than worked that year, Respondent
unlawfully penalized the strikers for exercising
their protected right to strike. We thus find that
Respondent violated Section 8(a)(3) and (1) of the
Act. 8
TH. REMED.)Y
Having found that Respondent has unlawfully
withheld accrued vacation benefits from certain
employees who participated in a protected strike,
we shall order that it cease and desist therefrom
and take certain affirmative relief necessary to ef-
fectuate the policies of the Act. We shall require
Respondent to pay each such employee the vaca-
tion benefits earned for work performed in 1976
prior to the commencement of the strike, together
with interest from June 28, 1977, the date on which
the Union requested the vacation benefits for the
strikers. 9
1973, to October 31, 1976 The contract provided the employees wsith
more vacation benefits than they had been receiving tinder the predeces-
sor contract which expired October 31. 1973 Employees who took saca-
lions in 1974 received vacations with the increased benefils According to
Respondent, this shows that employees did tot accrue a right to 1974 va-
cations in 1973 for, if they had, Respondent would have granted 1974 a-
cations in accordance with the lesser terms contained in the predecessor
contract. In light of circumstances noted above, we cannot infer so much
from this past practice. That the parties agreed to compute 1974 vaca-
tions under the terms of the later contract does not rebut the fact that
Respondent's employees earned vacation benefits in the year they per-
formed the work Rather, it appears that, while Respondent might have
insisted on making the 1974 payments under the terms of the predecessor
contract. during negotiations it chose not to do so
Moreover, taken to its logical end, the interpretation which Respon-
dent urges becomes even more difficult to accept In this regard. we will
not infer, without clearer contract language, that the enjoyment of bene-
fits based on work performed during the third year of a 3-year contract
was totally dependent on the successful and prompt negotiation of a new
contract after the third year.
ti Respondent, as noted above, also contended that it did not have to
provide vacation benefits to the strikers because under see VII.D, of the
contract paid vacations were designed to afford employees with rest and
relaxation, and the strikers did not take such a vacation in 1977 We find
this argument unpersuasive in this case. While the contract did contain
such a limitation, Respondent did not consistently adhere to it, pro iding
vacation pay to several employees who, for various reasons were unable
to take a scheduled vacation See fn 5, upra. See also Borden, Inc.
Borden Chemiual Diviion. 235 NLRB 982 (1978) (Member Pencllo dl-
senting), horwin Manufacturing C(rmpony. 243 NLRH 620( fit 5 (1979)
ix Vacation pay is to be cnmpuled in accordatice with he term of the
contract in existence on October 30, 176 Interest is to be computed in
the manner prescribed in Florida Seel Corporatron 231 NLRB 651 (1177)
Member Jenkins would comnpute interest in the manner specified i his
dissent in Olvmpic Medical Corp. 250 NLRB 14t (1980))
CONCI uSIONS O LAW
1. Vesuvius Crucible Company is an employer
engaged in commerce within the meaning of the
Act.
2. United Steelworkers of America, District 15,
AFL-CIO-CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By withholding vacation benefits from its
striking employees, Respondent engaged in and is
engaging in unfair labor practices proscribed by
Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Vesuvius Crucible Company, Swissvale, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Withholding accrued vacation benefits from
its employees who engage in protected strike activ-
ity.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their rights guaranteed by Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds necessary to effectuate the policies
of the Act:
(a) Grant accrued vacation pay to those striking
employees who performed work between January
I and October 31, 1976, in the manner set forth in
the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, personnel records, and all
other records necessary to determine the identity
of the employees to whom vacation pay is due and
to analyze the amounts due.
(c) Post at its plant in Swissvale, Pennsylvania,
copies of the attached notice marked "Appendix
B." 20 Copies of said notice, on forms provided by
the Regional Director for Region 6, after being
duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
2 I the eent this Order is enforced by a Judgment of a United
States Court f Appeals. the sswords in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant io a Judgnleit of the United States Court of Appeals Enforcing ar
Orde r of tilt National l.abor Relations Bolard "
VESILIVILIS CUCIBLE CMPANY~
I)tCI'SI()NS ()F NA II()NAI I AIt()R Rlil ATl IO)NS II()ARI)
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any othe material.
(d) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBER PF-Nl.O0, dissenting:
The parties to this proceeding long ago agreed
to settle all their disputes under their bargaining
agreement by using their contractual grievance-ar-
bitration procedure. Resolution of the dispute
herein turns on an interpretation of the contract
and is a matter which I believe is best left to the
arbitratal forum. For the reasons fully set out in the
dissent in General American Transportation Compa-
ny, 228 NLRB 808 (1977), I would honor the con-
tractual commitment of the parties and defer to
their grievance-arbitration procedure.
APPENDIX A
SECTION VII. VACATIONS
A. Eligibility
To be eligible for a vacation in any calendar year
during the term of this Agreement, the employee must
have one year or more of continuous service,
B. Length of Vacation and Extra Vacation Pay
I. An eligible employee who has attained the years of
continuous service indicated in the following table in any
calendar year, on the anniversary of his employment
with the Company, during the term of this Agreement
shall receive a vacation corresponding to such years of
continuous service as shown in the following table:
Years of Service
I but less than 3
3 but less than 10
10 but less than 15
15 but less than 25
25 or more
Vacation
I week
2 weeks
3 weeks
4 weeks
5 weeks
C. Scheduling of Vacation
Promptly after January 1 of each calendar year each
employee shall be requested to specify the vacation
period he desires. Vacations will, so far as possible, be
granted at times most desired by employees (longer ser-
vice employees being given preference as to choice), but
the final right to allot vacation period, and the right to
change such allotments, is exclusively reserved to the
Company in order to insure the orderly operation of the
business.
1. Vacation season shall be from January 1 to Decem-
ber 31.
2. Vacation dates must necessarily conform to business
requirements and shall be taken as scheduled by Manage-
ment.
3. Vacation schedules may be changed by the Compa-
ny if operating conditions make such change necessary.
5. Excepting conditions listed above, whenever a
Comnpany scheduled vacation shutdown is planned,
unless he is otherwise notified, such employee will take
his earned vacation at shutdown time. Those employees
who are due more than two weeks' vacation are required
to take only two weeks of their earned vacation at shut-
down time, providing the remaining vacation is taken as
provided for above. All vacations must be taken by De-
cember 31 in any year. There shall be no pyramiding or
carryover into subsequent years of vacation earned but
not taken by an employee.
D. Vacation Pay
An employee granted a vacation will receive, for each
vacation week, two percent (2%) of his earnings from
January 1 to December 31 of the year previous. In the
case of first year's employment, he will receive two per-
cent (2%) of the first twelve (12) months' earnings. Va-
cation pay shall be shown separately on the employees'
earnings.
Earnings are defined as all money received within the
prescribed period except that money received for holiday
pay, jury duty pay, cost-of-living adjustment, and death
in family pay shall be excluded from the total earnings
for computing vacation pay.
When an employee has been off work for reasons of
his ill health (but for no other reason) for more than one-
half of the number of available working days between
January I of any year and the subsequent December 31,
such employee's vacation benefits shall be calculated as
follows: (a) an employee having no earnings between
January I of any year and the subsequent December 31
shall be entitled to a minimum of one week or one-half
of his accumulated vacation benefits based on his basic
hourly wage rate, and (b) in determining the amount of
vacation pay, the two percent (2%) of his average
hourly earnings between January I and the subsequent
December 31 will be used. In such event, if this calcula-
tion (b) is less than the minimum defined above in (a),
the employee shall receive the greater of the two calcu-
lations.
In the event employment is terminated between Janu-
ary I and July for the following reason:
Quit, provided two weeks' prior notice of such
intent is given the Payroll Office in writing, the em-
ployee shall receive for each eligible week two per-
cent (2%) times his earnings for the last four (4)
consecutive closed quarters of work.
E. Vacation Allowance in Lieu of Vacation
While it is recognized that the purpose of the vaca-
tion provided by this Section is to grant the em-
1284
VESUVIUS CRUCIBLE COMPANY
ployees vacation with pay as annual periods of rest
and recreation, the Company may require an em-
ployee to work during his vacation, in which event
he shall be paid his vacation pay in addition to his
regular pay.
APPENDIX B
NOTICE TO EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL NOT withhold accrued vacation
benefits from our employees who engage in
protected strike activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed
by Section 7 of the Act.
WE WILL grant accrued vacation pay due
our striking employees for work performed be-
tween January 1 and October 31, 1976, with
interest.
VESUVIUS CRUCIBI.E COMPANY
DECISION
STATIMEN-T 0F THIE CASE
MICHAEL O. MIll.ER, Administrative Law Judge: This
case was heard on March 3, 1978, in Pittsburgh, Pennsyl-
vania, upon a charge filed by United Steelworkers of
America, District 15, AFL-CIO-CLC, herein the Union,
on September 13, 1977, as amended on October 27, 1977,
and December 19, 1977, and a complaint issued by the
Regional Director for Region 6 of the National Labor
Relations Board, herein the Board, on December 22,
1977.
The complaint alleges that Vesuvius Crucible Compa-
ny, herein Respondent, violated Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended, herein
the Act, by refusing to pay vacation benefits to its em-
ployees because they were engaged in a strike. Respon-
dent's timely filed answer admitted the jurisdictional and
other preliminary allegations but denied that there was
any unpaid vacation obligation owing and denied that its
actions were motivated by the strike. Respondent further
moved for the deferral of the issues herein to arbitra-
tion.
I That mtion uas ruled upon. and denied, prior to hearing and was
again denied hen reasserted at he openinig of the hearing Those rulings
are adhered to herein Although resolution uof the issues framed by the
complaint requires resort t the collectise-bargaining agreement, the issue
ias pleaded in the cimtplaintl. hrher Respondent has inlterfered s ith the
basic statutory right, of its emplovyee, and b its colduclt discouraged
them from engaginlg inI union aci tlitles is primarily an Issue usarratlling
delerminatiolo b the IBoard and canlllot be answred sitIel h) referenlce
to the contract In Glncral 1nlerial rualnpoirttiton (Crporiirllon, 229
NLRH 808 (1977), the Ihrard stated that it hadl "a taliitlor dul5 to hear
and dispoc of unfalr labor practices and cannot abdicate ofr al oid Its
duty hb seeking tU cede Its, Iurldltntl l il''ate tIlhaIiils" It expressly
Based upon the entire record, including my observa-
tion of the witnesses and their demeanor, the arguments
of counsel and due consideration of the briefs filed by
the General Counsel and Respondent, I make the follow-
ing:
FINDINGS OF FACT
I. IHE EMPI.OYIR'S BUSINESS AND FHIF UNION'S
LABOR ORGANIZAT ION TATUS
Respondent is a Pennsylvania corporation with its
principal office located in Pittsburgh, Pennsylvania. It is
engaged at Swissvale, Pennsylvania, in the manufacture
and sale of stopper heads and crucibles. The Swissvale
facility is the only facility involved herein. Jurisdiction is
not in issue. The complaint alleges, Respondent admits,
and I find, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
1. THE A.I.EGED UNFAIR ABOR PRACTICE
A. The Issues
At issue is whether, by their work in 1976 prior to the
commencement of an economic strike, Respondent's em-
ployees accrued vacation benefits payable to them in
1977 and whether, by its refusal to pay those vacation
benefits, Respondent violated Section 8(a)(3) and (1) of
the Act.
B. Iacrts-Current
Respondent and the Union have maintained a collec-
tive-bargaining relationship at the Swissvale facility for
over 30 years."2 Successive collective-bargaining agree-
ments have been entered into, the most recent of which
was the 1973-76 agreement (herein referred to as the
1973 agreement) dated November 2, 1973. That contract
expired, by its terms, on October 31, 1976.
So far as is relevant here, the 1973 agreement provided
as follows in regard to vacation benefits:
SECTION VII. VACATIONS
A. Eligibility
To be eligible for a vacation in any calendar year
during the term of this Agreement, the employee
must have one year or more of continuous service.
held the (Colvr doctrine (ollyer Inularted Ire. Gulf and esrrr Sr-
tem (o, 192 NL RB 837 (1071)) inapplicahle to cases involiing alleged
interferences with the hasic statulory rights of employees This case falls
uithin the ambil of General .nlmerica ransportaion Corporation
2 The bargaining unit, as set forth in the 1973-76 agreement is
All emphloNees f the Company's planlt ilualed at 221bh Palmer
Street. S issxale. Pillsburgh. t'enss anis a 15 2 Iex cluding salaried
emploees, supervisors ilth the right to hire and ire or effectively
to recotinilend such action. cnfidenlial eniploopees, techilical and en-
ginerinlg personniel. uaatchilmen ho spend nil re tIhan fift5 (I501 pr-
cenlt f their , rkinig titt In saltching or rninitorial duties ad pro-
hailioliar eiployees s dFined tnder Section
1 285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Length of Vacation and Extra Vacation Pay
1. An eligible employee who has attained the
years of continuous service indicated in the follow-
ing table in any calendar year, on the anniversary of
his employment with the Company, during the term
of this Agreement shall receive a vacation corre-
sponding to such years of continuous service as
shown in the following table:
Years of Service
I but less than 3
3 but less than 10
10 but less than 15
15 but less than 25
25 or more
Vacation
1 week
2 weeks
3 weeks
4 weeks
5 weeks
C. Scheduling of Vacation
Promptly after January I of each calendar year
each employee shall be requested to specify the va-
cation period he desires. Vacations will, so far as
possible, be granted at times most desired by em-
ployees (longer service employees being given pref-
erence as to choice), but the final right to allot va-
cation period, and the right to change such allot-
ments, is exclusively reserved to the Company in
order to insure te orderly operation of the busi-
ness.
1. Vacation season shall be from January I to
December 31.
2. Vacation dates must necessarily conform to
business requirements and shall be taken as sched-
uled by Management.
3. Vacation schedules may be changed by the
Company if operating conditions make such change
necessary.
5. Excepting conditions listed above, whenever a
Company scheduled vacation shutdown is planned,
unless he is otherwise notified, such employee will
take his earned vacation at shutdown time. Those
employees who are due more than two weeks' va-
cation are required to take only two weeks of their
earned vacation at shutdown time, providing the re-
maining vacation is taken as provided for abo e. All
vacations must be taken by December 31 il any
year. There shall be no pyramiding or carryover
into subsequent years of vacation earned but not
taken by an employee.
D. Vacation Pay
An employee granted a vacation will receive, for
each vacation week, two percent (2%) of his earn-
ings from January I to December 31 of the year
previous. In the case of first year's employment, he
will receive two percent (2%7c) of the first twelve
(12) months' earnings. Vacation pay shall be shown
separately on the employees' earnings.
Earnings are defined as all money received
within the prescribed period except that money re-
ceived for holiday pay, jury duty pay, cost-of-living
adjustment, and death-in-family pay shall be ex-
cluded from the total earnings for computing vaca-
tion pay.
When an employee has been off work for reasons
of his ill health (but for no other reason) for more
than one-half of the number of available working
days between January I of any year and the subse-
quent December 31, such employee's vacation bene-
fits shall be calculated as follows: (a) an employee
having no earnings between January I of any year
and the subsequent December 31 shall be entitled to
a minimum of I week or one-half of his accumulat-
ed vacation benefits based on his basic hourly wage
rate, and (b) in determining the amount of vacation
pay, the two percent (2%) of his average hourly
earnings between January I and the subsequent De-
cember 31 will be used. In such event, if this calcu-
lation (b) is less than the minimum defined above in
(a), the employee shall receive the greater of the
two calculations.
In such event, if this calculation (b) is less than
the minimum defined above in (a), the employee
shall receive the greater of the two calculations.
In the event employment is terminated between
January I and July for the following reason:
Quit, provided two weeks' prior notice of such
intent is given the Payroll Office in writing, the
employee shall receive for each eligible week
two percent (2C) times his earnings for the last
four (4) consecutive closed quarters of work.
E. Vacation Allowance in Lieu of Vacation
While it is recognized that the purpose of the va-
cation provided by this Section is to grant the em-
ployees vacation with pay as annual periods of rest
and recreation, the Company may require an em-
ployee to work during his vacation, in which event
he shall be paid his vacation pay in addition to his
regular pay.
Respondent and the Union met several times prior to
the October 31, 1976 expiration date of the 1973 contract
in an effort to negotiate a new agreement. In the course
of those meetings, Respondent made proposals which
would have reduced the amount of vacation and vaca-
tion pay to which certain employees were entitled: the
Union's proposals would have increased vacation pay.-
Respolndent'ls iitial proposal would have reduced he maximum va-
cation fromn 5 to 4 weeks alnd eliminated the contractual language regard-
illg acatioll pity for employees absent from v:work for reasons of ill
health; its econd proposal would have frozen vacat on eligibility to that
which the emrployees had carlled a of his anniversar date in the year
prior t contract expirationl I further would have denied acatiorn bene-
fits to emplyees working less than one-half the aailable s ,rking days
in tihe year preceding the vsacation )ear The Uni ons proposal would
have increased acationr pay h eliminating the dductioll front gross
earnli gs (olida y pay, juy r tIt pay. cosI-of-hi ig adll tnlment. arnd death
i Ire filllyi pi ) set frlh ill Ihe 1973 agreement in rgard to cmputlng g
ailcatiot py
1286
VESUVIUS CRUCIBLE COMPANY
date. The Union proposed, then and subsequently, to
extend the existing contract for 90 days while negotia-
tions continued. Respondent rejected this proposal. Its
proposal, to continue working under the terms as set
forth in its last offer while negotiations continued, was
similarly rejected. The Union commenced an economic
strike on November 1, 1976, which continued until the
date of hearing herein (and presumably to date).
At a negotiating meeting held on June 28, 1977, just
prior to the date on which the annual plant shutdown
and mandatory vacation period would have commenced
if there had been no strike, Caleb Scott, the union repre-
sentative, requested vacation pay for all eligible employ-
ees. Respondent's counsel stated that he would check
into it and would then reply to the Union. In a letter
dated June 28, 1977, Respondent's counsel stated:
We have carefully reviewed Section Vll of the
1973-76 Labor Agreement and have concluded that
no vacation pay is yet due to any Vesuvius Bargain-
ing Unit employee.
Section VII, B-I reads as follows:
I. An eligible employee who has attained the
years of continuous service indicated in the fol-
lowing table in any calendar year, on the anni-
versary of his employment with the Company,
during the term of this Agreement shall receive a
vacation corresponding to such years of continu-
ous service as shown in the following table: . . .
As we interpret this Section there was vacation
due for the three years which constituted the "term
of this agreement." Unless and until a new agree-
ment is reached specifying terms and conditions for
vacation during its term, I do not believe that any
payment is required.
Pursuant to this position, Respondent refused to pay
any vacation pay in 1977. At hearing, Respondent fur-
ther justified its position on its alleged inability to deter-
mine, in the absence of a contract, what formula it
should apply in calculating vacation benefits. At no time
did Respondent contend that it was financially unable to
pay vacation benefits.
Other than receiving payment in January 1977, for va-
cation time unused in 1976, no unit employees received
vacation pay in 1977. One unit employee who returned
to work in October 1977 in a nonunit salaried capacity
received no vacation pay. Other nonunit employees,
watchmen, whose vacations are differently computed,
not on the basis of the prior years' earnings, were given
vacation pay. The record contains no concrete evidence
of whether Respondent gave the employees at its other
nonrepresented plants paid vacations. Robert Mayer, Re-
spondent's vice president of finance, testified that he
knew of no reason why they would not have received
vacation pay.
C. The Practice Respecting Vacation Pay
Respondent contended that in the absence of a new
agreement, and in the face of conflicting proposals for
vacation pay in such an agreement, it was unable to de-
termine on what basis to pay vacation pay. In this regard
it pointed out that the 1973 agreement provided for va-
cations in language similar to that of the 1970-73 con-
tract,4 but was somewhat more generous in regard to the
number of weeks of vacation for certain senior employ-
ees. The 1973 contract also changed the base period used
in computation of vacation pay, from a fiscal to a calen-
dar year and similarly changed the vacation season to a
full year, commencing January 1, rather than the May I
to December 31 season provided in the earlier agree-
ment. In 1974, notwithstanding the contract provided for
vacation pay based upon a percentage of the 1973 earn-
ings, vacations were allotted and vacation pay provided
according to the terms of the new 1973 contract. Em-
ployees whose vacation entitlement increased under that
new contract received the greater benefit in 1974.
Respondent pointed out that the striking employees
performed no work in 1977 and adduced evidence that
employees who did not work in a given year did not re-
ceive vacations or vacation pay in that year notwith-
standing that they had worked all or part of the prior
year. Thus, an employee who retired at the end of Janu-
ary 1976 had his accumulated vacation (5 weeks) added
on to his employment, received pay for 5 weeks vacation
upon leaving, and did not enter into retirement status
until the expiration of that vacation period. In the fol-
lowing year, that employee received no vacation pay
even though he had worked for a period of time in the
year of his retirement. Similarly, employees laid off in a
given year received payment for unused vacation time in
that year but received no vacation or vacation pay in the
following year unless they returned to work in that year.
By specific provision of the 1973 agreement, employees
absent due to illness received a vacation benefit even
though they did not work. The General Counsel points
out that Respondent also paid vacation pay to employees
in a year in which they performed no work but were out
of work due to industrial injuries. In regard to such em-
ployees, however, Respondent contended that it made
such payments of vacation pay pursuant to an arbitration
award requiring it to treat such employees as if they had
come back to work.5
D. Analysis and Conclusions
The General Counsel contends that Respondent's em-
ployees accrued vacation benefits by work they per-
formed in 1976, that those benefits were payable in 1977
' The language of sec. VII. B1, referring to receising a acallon
during "the term of this Agreement" was identical
· The arbitration aard referred to did not deal precisely with this
queston A issue was whether employees who were absent due to work-
related injuries were improperly denied hospitalization benefits when the
employer placed them on layoff status The employer had placed them
on layoff status when it laid off a number of other employees and the
layoffs reached a point on the seniority roster when these employees
would hase been laid off had they been at work As a result. their hospi-
talizalion insurance terminated pursuant to the contract at the end of the
monlith in hich hey were deemed laid off. The arbitrator upheld Re-
spondents position vj-a vi their layoff status but held that when the lay-
off, ended, and the recall of employees reached them on the enlority
roster, thoe sanme mployees had to be reated as constructively recalled
and retirned to "abscnt-ill' staius rather than continuing to be treated as
laid-off employces
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the terms of the 1973 collective-bargaining agree-
ment, and that Respondent violated Section 8(a)(l) and
(3) of the Act when it refused to pay those accrued va-
cation benefits as requested on June 28, 1977. Respon-
dent defends its position by asserting that, under the
terms of the 1973 contract and the practice between Re-
spondent and the Union, no vacation benefits had ac-
crued to those employees and, even assuming that some
benefits accrued, there was no way to compute those
benefits in the absence of a new collective-bargaining
agreement. It further asserts that no finding of a viola-
tion of Section 8(a)(3) can be found because all employ-
ees were treated the same and because, under the terms
of the expired contract and its practice, no vacation was
due any employee who did not work in the year in
which that employee was to receive a vacation.
In N.L,R.B. v. Great Dane Trailers, Inc., 388 U.S. 26
(1967), the Supreme Court upheld the Board's finding
that the refusal to pay vacation benefits to strikers, while
granting such payments to nonstriking employees, consti-
tuted discrimination in the terms and conditions of em-
ployment tending to discourage union activity, in viola-
tion of Section 8(a)(3), and unlawful interference with
protected activity, in violation of Section 8(a)(1). There
was no question, in Great Dane, but that the vacation
benefits had accrued to the employees.
As noted, Respondent contends that the facts herein
place this case outside the ambit of Great Dane inasmuch
as there was no discrimination between striking and non-
striking employees. It is not necessary to reach the ques-
tion of whether such discrimination may be found on the
basis that Respondent accorded paid vacations to its em-
ployees in other plants. A finding of violation may be
warranted even absent evidence of disparate treatment. If
all employees were denied benefits because some chose
to engage in a protected activity, the denial would be
unlawful. Cavalier Division of Seeburg Corporation and
Cavalier Corporation, 192 NLRB 290, 298 (1971); Texaco,
Inc., 179 NLRB 989, 993 (1969). See also Knuth Bros.,
Inc., 229 NLRB 1204 (1977), wherein the Board predi-
cated a finding of 8(a) (1) interference with protected
rights upon a conclusion that the denial of vacation bene-
fits to striking employees was a consequence of their
strike activity, even though that denial involved no dis-
parate treatment and was not specifically motivated by
their participation in the strike.
Similarly without merit is Respondent's contention
that the striking employees were entitled to no vacation
benefits because they performed no work in 1977. As-
suming that vacation benefits had accrued during 1976,
the employees' absence from work in 1977 because they
were engaged in a lawful and protected strike would not
warrant the withholding of those accrued benefits. Em-
ployees participating in a lawful strike retain their statu-
tory status as employees and "an employer may not
equate strike time with other forms of unexcused absence
for purposes of determining strikers' rights to company
benefits, because the Act protects employees who are en-
gaged in protected strike activity . . ." Russell Sports-
wear Corporation, 197 NLRB 1116, 1121 (1972). See also
Knuth. supra. ElImac Corporation, 225 NLRB 1188 (1976);
and Frick Company, 161 NLRB 1089 (1966). Compare
Glomac Plastics, Inc., 194 NLRB 406 (1971), relied on by
Respondent, wherein the employees' strike-related ab-
sence occurred during the period in which the vacation
would have been earned and thereby prevented accrual.
The keystone of this case is therefore whether or not
the vacation benefits accrued and became vested in the
employees by virtue of the work which they performed
in 1976. 1 am constrained to conclude that they did not.
In reaching this conclusion, I note that the 1973 agree-
ment specifically limited the grant of vacation benefits to
its term. See section VII(A) and (B). The former speaks
of employees being eligible for a vacation "in any calen-
dar year during the term of this Agreement." The latter
refers to the attainment of various lengths of service with
the Company "on the anniversary of his employment
with the Company, during the term of this Agreement
. . "Moreover, the practice of the parties in regard to
vacation benefits payable in the first year of a new col-
lective-bargaining agreement is consistent with a conclu-
sion that the benefits had not accrued in 1976. Thus, in
1974, after Respondent and the Union had negotiated a
new agreement, effective November 1973, providing for
increased vacation benefits, the employees received their
vacation benefits according to the terms of that new
agreement. They did not receive merely the lesser bene-
fits of the 1970-73 agreement as might have been expect-
ed if accrual and computation had been made thereun-
der. The evidence of this practice further supports Re-
spondent's contention that even if vacation benefits could
be said to have accrued during 1976, it had no way to
compute what vacation benefits it should have paid until
a new agreement was reached. Clearly, as demonstrated
by its payment of the increased benefits in 1974, payment
under the terms of the expired contract would not have
been appropriate. Vacation benefit payments so comput-
ed might have been too high. They might also have been
too low. Until a new agreement was reached, there was
no way of telling.
Further supporting Respondent's contention that the
contractual references to the prior year's earnings merely
provided a basis for the computation of vacation benefits
and did not evidence accrual is language found in the
third paragraph of section VII(D) of the 1973 contract.
Included therein is a provision for the computation of
vacation pay for employees who, for reason of ill health,
performed no work in the year prior to that in which va-
cation benefits were received. If such employees receive
vacation benefits, it can hardly be said that, under the
terms of this agreement, vacation benefits accrue on the
basis of work performed in the year prior to the vaca-
tion.
As I have found that vacation benefits had not accrued
to Respondent's employees during 1976 and that, there-
fore, Respondent was not obligated to pay vacation
benefits in 1977, it follows that refusal to make such pay-
ments violated neither Section 8(a)(I) nor 8(a)(3) of the
Act. 6 Accordingly, I shall recommend that the com-
plaint herein be dismissed in its entirety.
A .ihilar cnclus.ion fll ows from Ihe onclusi,on Ihat the acation
pay obligation. een if it could be aid to haxe accrued, as inlpossible of
calculation in the :Ihsence of a new agreement
1288
ViSII\ its C'rCtIHI C()Ml'ANY'
CON I SI()NS ()I . \%
I. Vesuvius Crucible Company is an emploscr cii-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and it will effectuate the purpose of
the Act to assert jurisdiction herein.
2. United Scclwrkcis of America, District 15, AFL-
CI()-CIC. is a labor organizalioin within the meaning of
Sectlion 2(5) of the Act.
3. Respondent did not violate the Act in the manner
alleged in the comnplaint.
[Recommended Order for dismissal omitted from pub-
licatioi.]
12x9