Mueller Co.

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mueller Company and Local Union No. 838, Allied Industrial Workers of America, AFL-CIO. Case 38-CA-128. June 16,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On July 1, 1966, Trial Examiner George Turitz issued his Decision in the above-entitled case, finding that the Respondent had not engaged in certain 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 together with a supporting brief. The Respondent filed cross-exceptions with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The 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 brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. complaint was issued on a charge and first amended charge filed by Local Union No 838 of the International Union, Allied Industrial Workers of America, AFL-CIO' ("the Union") and served upon Respondent on August 25 and November 22, 1965. respectively. The complaint alleged that Respondent's refusal to pay "accrued" holiday pay to employees then on strike was a violation of Section 8(a)(3) and (5) of the National Labor Relations Act, as amended ("the Act"). Respondent filed an answer to the complaint in which it denied all allegations of unfair labor practices and pleaded various affirmative defenses. At the hearing the General Counsel and Respondent were represented by counsel. Both waived oral argument but filed briefs with the Trial Examiner. - Upon the entire record2 and from his observation of the witnesses the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Mueller Company is an Illinois corporation with its principal office and place of business located at Decatur, Illinois, where it is engaged in the manufacture and sale of gas and water distribution equipment. Respondent in the course and conduct of its operations annually sells and ships products valued at in excess of $50,000 directly to customers located outside the State of Illinois. Respondent admits, and it is found, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES 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 in its entirety. i The Trial Examiner found that the General Counsel failed to satisfy his burden of proof that the strikers had earned the holiday pay involved in this proceeding We rely upon this failure of proof alone in affirming the Trial Examiner's Decision in this case dismissing the complaint But see Great Dane Trailers, Inc , 150 NLRB 438, 388 U S 26, Frick Company, 161 NLRB 1089 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE TURITZ, Trial Examiner: On March 29, 1966, a hearing was held before the Trial Examiner at Decatur, Illinois, on a complaint against Mueller Company ("the Respondent" and at times "the Company") issued December 29, 1965, by the General Counsel of the National Labor Relations Board ("the Board") through the officer in charge of the Board's Subregion 38. The A Sequence of Events-the Expired Contract In 1944 the Union's predecessor, Local Union No. 838 of the International Union, United Automobile Workers of America, AFL, was certified as representative of a "production and maintenance" unit of Respondent's employees. Between 1954 and 1956, following the merger of the AFL and CIO, Local 838 became Local Union No. 838 of the International Union, Allied Industrial Workers of America, AFL-CIO, the Charging Party in this case. Respondent has maintained a bargaining relationship with this labor organization since 1944. In 1962 a contract was entered into to expire May 25, 1965. Negotiations for a new contract were unsuccessful and on May 24, 1965, the union bargainers notified the Respondent that there would be a strike that night, saying, "No contract, no work." The strike began at 12:01 a.m., May 25. No employee in the bargaining unit reported for work during the strike, which was finally settled on July 7, 1965. A copy of the 1962 contract in evidence" is a printed booklet of 100 pages. 37 of which are devoted to seniority and to layoff, recall, and job-bidding procedures. The contract provided that seniority status was retained on i This is the Union's name as it appears on its contracts with Respondent The case caption shows its name as subscribed to the charge and the first amended charge. i The errors in the transcript have been noted and corrected G, C Exh 3 165 No. 66 MUELLER CO. layoff up to the maximum period of 3 years, or 5 years in the case of employees aged 55 to 60.4 Employees absent from work more than 7 days for any reason other than approved vacation, injury, or illness were required to apply for a leave of absence;' and those absent for 3 consecutive workdays without notifying the personnel office lost all seniority. The contract provided for certain paid holidays, among them Memorial Day (May 30), Independence Day (July 4), and the employees' respective birthdays, the holiday to be observed on Monday when falling, as was the case with Memorial Day in 1965, on a Sunday or a Saturday, and an extra day off to be given an employee whose birthday fell on a holiday. The holiday provision included the following: 17.1 All employees on the active payroll the day of the holiday who have established seniority with the Company and who have worked at least one eight (8) hour shift in a period two (2) weeks before a holiday shall receive holiday pay. Employees who are on vacation will receive holiday pay even though they did not work an eight (8) hour shift in the period two (2) weeks before the holiday. Employees laid off or retiring in the two (2) week period before the holiday who have worked an eight (8) hour shift will be paid holiday pay. Employees injured in the plant and who are off work will be paid holiday pay even though they did not work an eight (8) shift in the two (2) week period before the holiday. 17.2 ... No employees ... shall be required to work on a holiday.... The contract had vacation provisions which included the following: 19 1 All employees in the bargaining unit on the active payroll on the anniversary date who meet the eligibility requirements set forth in this policy will be granted time off from work and be paid for such time in manner explained below: such time off with pay will be known as vacation Eligibility will be determined by the anniversary date of the employee's last hiring date and active service credit earned in the preceding year. The contract provided that employees separated from the Company were to receive all vacation earned in the previous year which had not been taken, together with vacation pay for each month's "active service" from January 1 to the time of separation in accordance with a schedule setting forth a specific number of hours for each month of active service between January 1 and the date of separation. Active service was defined in the contract as follows: 19.4. . Any work performed in any given month shall be deemed as active service. Employees absent This was subject to the requirement that employees notify the Company by registered or certified mail within 60 days prior to the expiration of each 1-year period of their wish to be retained on the Company's recall list 5 Sefton , Respondent's factory manager, testified that Respondent also required employees absent for illness to obtain leave It will be recalled that no unit employee crossed the picket line Nonunit employees were given the same vacation and holiday 509 from work due to illness or personal injury shall be deemed as having active service up to a maximum of three (3) consecutive months. Absence of more than three (3) consecutive months shall not be credited for vacation pay purposes. Employees injured in the plant will receive active service credit for time lost due to this injury. The contract also provided that employees with 1, 3, and 10 years of seniority would receive paid vacations of 1 week, 2 weeks, and 3 weeks, respectively, plus additional pay (not days off) for 20 hours for employees with 15 years' seniority and 40 hours for employees with 25 years' seniority. Subject to company approval, vacations could be taken at any time and in any amount up to the maximum earned. May 31, 1965, the Memorial Day holiday from work, fell in the pay period ending June 13, the payday for which was June 18. No bargaining unit employees received pay for May 31.6 Respondent also canceled all vacations and withheld extra vacation pay from all bargaining unit employees who, apart from questions arising from the fact that they were out on strike, qualified for such payment during that period. The checks for the extra vacation pay were made out on June 13 but were not distributed. All nonunit employees who met the eligibility requirements stated in the contract' did receive such holiday and extra vacation pay. As to the holiday pay. Sefton testified that it was withheld from the strikers because they failed to meet the requirement that they be on the active payroll on the day of the holiday as required by the holiday plan. He said that Respondent was following the contract terms as to holidays even with respect to strikers As to the vacation pay, however, he testified that the reason strikers' vacation moneys were withheld was: "Our interpretation of the contract and we canceled vacation and paid nobody while on strike. . . . The contract was expired and they were not there to work. so we did not pass them out They were ... not on the active payroll as we interpreted the contract." He said that the checks were made ready since the Company felt that eventually there would be a contract and the employees would be back on active payroll." Negotiations continued during the strike with the aid of a Federal mediator named Harper. At a meeting between the parties on June 18, the day certain senior employees entitled to extra vacation pay under the terms of the contract would normally have received it, the bargaining committee requested such pay from the Company. Respondent refused, saying that the employees would not get that money until they returned to work. At a negotiation meeting on June 28 or 30, Harper commented on the fact that after over 20 years of collective bargaining the parties were engaged in a 6-week strike, and he remarked to the union representatives that the employees had already lost one holiday and were about to lose another, referring to July 4. The union representatives did not take issue with the remark. The benefits as the contract provided There is no evidence that any nonunit employees were laid off or on leave during the strike except to the extent that during the latter part the plant was shut down for the vacation schedule " In view of this testimony and of the evidence mentioned below that at the July 20 grievance meeting Respondent argued against paying the Memorial Day holiday pay on the ground that it had been agreed that except for the birthday-holiday pay there would be no retroactivity, Sefton's testimony that Respondent was following the holiday provisions of the contract is not credited 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union ultimately proposed that in addition to the pay increases, the additional holiday each year, and whatever else the Respondent had offered up to that time, Respondent pay birthday-holiday pay to those strikers whose birthdays had occurred during the strike. They argued that it was unfair to those employees to deny them the birthday-holiday pay which everyone else in the unit received. Sefton replied that the proposal had some merit and would be considered. The negotiators met again on July 7. Sefton asked whether, if the Respondent granted the birthday-holiday item. the union bargaining committee would unanimously recommend the package. Assured that they would, Respondent agreed and the strike was settled Maintenance employees reported for work the next day; the others on July 13. Sefton. corroboratt-d by Ashmore, manager of Respondent's industrial relations department, testified that at a negotiation session on or about June 16 or 18 an employee-member of the bargaining committee asked if Respondent would pay Memorial Day holiday pay to the employees on strike and that Sefton refused, saying that the strikers did not qualify since they were not on the active payroll. Angle denied that any such demand was made or that the matter was discussed. In the affirmative defenses in its answer Respondent alleged certain negotiations at the June 28 session as constituting discharge of any obligation to bargain about, and waiver by the Union of Memorial Day holiday pay. but it alleged nothing about any incident of such nature earlier in the strike Moreover. Sefton's testimony is sharply contradicted by his affidavit taken during the investigation" in the presence of Respondent's attorney, in which he said- At no time during negotiations except as discussed below, did the question of holiday pay as such arise. During negotiations prior to the strike, the Union demanded two additional holidays. However, this demand was reduced to one additional holiday pay. the day before Christmas. Agreement was reached on one additional holiday prior to the strike. The affidavit describes discussions concerning birthday- holiday pay and contains the statement, "In discussing holidays, Angle remarked that he was aware that the Memorial Day holiday has been lost." The affidavit contains no statement about any demand by the union representatives for Memorial Day pay"' until August 11. 1965. after the strike. The affidavit further states, "Prior to the August 11 meeting, the Company had no knowledge that any of the employees in the Union felt that they were entitled to pay for Memorial Day and that this was the first knowledge the Company had of such demand." The witness explained the latter discrepancy by saying that when giving the affidavit he was not thinking of the Union's representatives but only of the employees, and then only in their individual capacity and not as members (, C Exit 6 The affidavit refers to "Company Exhibit 1 attached hereto" which, however , was not attached to the affidavit as offered in evidence This was not called to the Examiner 's attention during the hearing , and no objection %as made that the document was incomplete Respondent did object to its admission on other grounds, unrelated to incompleteness ' i The corresponding provision in the 1954 contract includes the following 65 All employees who have established seniority with the Company and who have worked at least one eight (8) hour shift in a period two (2) weeks before a holiday shall receive of the bargaining committee On the basis of Angle's testimony, which is credited, and of the corroboration contained in Respondent's answer and in Sefton's affidavit, it is found that at no time during the strike did the Union demand or negotiate about pay for the 1965 Memorial Day holiday. Sefton and other witnesses for Respondent also testified that at the final meeting on July 7, Angle said, not by implication but in so many words, that the bargaining committee would tell the employees that they were able to get the birthday-holiday pay for strikers but not Memorial Day pay. Angle's denial of this testimony is credited After the unit employees returned to work all who were entitled to birthday-holiday pay or vacation pay were paid. Vacation pay was given on the basis of the rates in effect under the old contract. On July 20 at a regular Tuesday grievance meeting the union bargaining committee took the position that vacation pay should be computed on the basis of the rates in effect at the time of the payment. Respondent replied that it had been agreed that there would be no retroactivity The committee then demanded pay for Memorial Day. Respondent replied that it had been agreed that nothing would be retroactive except the birthday-holiday pay and that even that was at the old rates The matter was brought to the attention of the president of the Union, who called Angle. Angle pointed out that the contract contained the eligibility requirements for holiday pay and said that the Company could be held to those requirements. After consulting counsel Angle called Sefton on August 11 and requested a meeting about the Memorial Day holiday pay. Sefton arranged a meeting for that same afternoon. At the meeting Sefton's reply was, in effect, that the strikers did not qualify for the Memorial Day holiday since they were not on the "active payroll" at the time of the holiday However he agreed to check with his superiors. A week later he informed Angle that the Respondent refused to pay the strikers and the Union thereupon filed the present charge B. The Evidence as to the Meaning of "The Active Payroll" The words "active payroll" were introduced into the holiday pay provisions of the contract in 1956." As noted above, the words were in the vacation provisions even prior to the 1954 contract. None of the negotiators at the 1956 negotiations who testified had any recollection as to the discussion concerning the introduction into the holiday clause of the words "on the active payroll " Respondent, however, produced handwritten minutes of the negotiations made by Binkley, at that time assistant director of personnel. who testified that the minutes were written during the meetings and were an accurate "verbatim" report of everything said except things he considered unimportant, such as "a side remark 6r a hest."t ' eight (8 ) hours pay at their straight time hourly rate including bonus, and shift premium , for the following holidays not worked Employees who are on vacation or have been injured in the plant in the month preceding the holiday, and who are off work shall receive the holiday pay even though they did not work an eight (8) hour shift in the period two (2) weeks before the holiday 12 A mere reading of the minutes makes it plain that they were not verbatim or even complete accounts of the bargaining sessions However, there is nu reason for them not to be accepted as sufficiently accurate for present purposes MUELLER CO. The minutes show the following: At the April 16 bargaining session the Respondent asked that to qualify for holiday pay employeesl be "on the payroll"; Angle replied that a man who worked all year and was separated 2 days before a holiday earned the holiday pay and should receive it but that the Union would agree if the Company granted two added holidays; Sefton rejected that proposal and the matter was passed. At the May 11 session, after the parties agreed on one additional holiday, Angle proposed. "Pay everyone on active seniority holiday pay," but the company representatives insisted that employees laid off before the holiday not qualify. Angle said that the only qualification should be to work one 8-hour shift in the 2 weeks before the holiday. 'A company bargainer warned that if the matter was not cleared up, ". . we'll put some real restrictions." Angle asked, "If we give you `active payroll' will you pay ... those who worked the shift and [are] then laid off before the holiday?" Sefton replied that he thought they had come to an understanding. The minutes for the May 17 session show that Sefton agreed to "give injured holidays up Ito three" and that he said something about laid-off and retired employees. but the minutes are incomplete and meaningless on the point. In the 1962 contract two new provisions were introduced allowing employees some pay for time spent on jury duty and allowing up to 3 workdays off for attending and/or handling arrangements for funerals of certain relatives. Both provisions excepted time so spent during "non-work time" such as holidays, vacations, layoffs, strike, leave of absence, or, in the case of jury duty, on Saturdays or Sundays. Several times during his testimony Sefton stated that to be on the active payroll a man had to work the day before and the day after the holiday. However, when questioned as to actual practice, he stated repeatedly, unequivocally, and with certainty that employees on the seniority list who worked the required 8-hour shift did qualify even though they were absent from work imediately before and/or after the holiday. Thus he said that a man who worked the 8- hour shift could be absent for 9 working days before the holiday and still qualify for holiday pay. He further stated that the reason for the absence-whether nonoccupational illness, personal business, or anything else-was immaterial, so long as the employee did not go on "approved leave." He said that an employee could be out sick up to 5 working days or ,7 calendar days without going on leave. As to obtaining leave of absence for personal reasons other than illness, he stated that it was difficult to draw fine distinctions since the practice was so infrequent. Sefton also testified that when going through company records in preparation for the hearing it had been discovered that some employees who had quit had received holiday pay for holidays occurring after their termination, but that that l was an oversight. He also admitted that when discharging Dale Bowen for cause on December 16, 1964, Respondent had paid Bowen holiday pay for December 24, 25, and January 1. He stated that this was not because the contract required it but that the Christmas season made him feel like doing it. On February 20, 1966, Respondent paid Memorial Day holiday pay to two employees in the bargaining unit, Bolsen and Danewicz. Ashmore testified that in the course of a general discussion with Jesse, assistant to the personnel director, of eligibility for vacation credit, they looked through the contract and became aware of the fact that those two employees had been entitled to holiday pay for Memorial Day because they were out of the plant at 511 that time with occupational injuries. When Sefton was informed, he agreed and the payment was thereupon made. Bolsen was released for active work on June 28; he was paid for the May 31 holiday but not for July 4. Danewicz came back from sick leave after the strike was over; he was paid for both the May 31 and the July 4 holiday. Concluding Findings Counsel for the General Counsel contends that the denial of the Memorial Day holiday pay to the strikers constituted a departure from the established conditions of employment, and that. since it was accomplished without bargaining with the employees' statutory representative, it was violative of Section 8(a)(5) of the Act. He also contends that such departure was discriminatory and violative of Section 8(a)(3) of the Act, both because denial of holiday pay on the basis of absence while striking had the natural and necessary consequence of discouraging strike activity and union membership, and because Respondent had a demonstrably discriminatory motive. The first question to be determined is whether the holiday pay "accrued" under the terms of employment established prior to the strike, namely those set forth in the expired 1962 contract. Since the words, "active payroll," do not have a plain meaning, it is necessary to look at other parts of the contract, the negotiations leading to the contract, and the contracting parties' practice under the contract to determine the parties' intent in establishing those terms. Respondent contends that the 1956 negotiations and the express provision in the holiday clause for laid-off employees demonstrate that the parties did not intend to cover strikers. There is little in the minutes of the 1956 negotiations to support Respondent's contention directly. The minutes do make plain that Respondent's purpose was to constrict eligibility for holiday pay, which is understandable in view of a contract which retained employees on the seniority list up to 5 years after layoff. It is equally plain, however, that the Union regarded holiday pay as wages for which the employees worked not only at the time round the holiday, but all year. As the holiday pay provision was not a unilateral act by Respondent but the product of bilateral bargaining, its ambiguous provisions must be interpreted in light of both parties' aims. not just Respondent's. The negotiations disclose nothing as to the meaning of "active payroll." The express provision for laid-off employees does not tend to prove that the parties intended that strikers not receive holiday pay. If active payroll means anything, it would not include laid-off employees, but it is not inconceivable that parties would include strikers within that term, especially in view of the specific requirement for working an 8-hour shift in the 2 weeks before the holiday. Sefton's testimony as to the Company's practice adds up to the proposition that the active payroll on the day before or after a holiday included all employees working that day, plus absentees not laid off or separated and not on formal leave of one kind or another-whether vacation, personal, or occupational sick leave, or leave for personal reasons. As employees absent from work more than a week were required to apply for formal leave of absence, the insertion of the words"active payroll" accomplished a change notwithstanding the exception for laid-off and retired employees. Sefton exaggerated in testifying that to be on the active payroll one had to work the day before and 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the day after the holiday , and that Respondent was endeavoring to prevent absences whereby employees "stretched" weekends . Nevertheless , the 1954 contract did give employees the benefit of a holiday even though on approved leave at the time, thus tending to encourage applications for such leave in holdiay seasons more than at other times , and this shortcoming was remedied by the addition of the words "active payroll " interpreted as described in the first sentence of this paragraph. If that was parties' intent , employees absent on strike would be equally ineligible for holiday pay. Sefton's testimony as to the Company's practice is unsatisfactory because of his self-contradictions described above. In addition , it must be noted that his testimony that the Union demanded pay for the Memorial Day holiday in the middle of June has not been credited. Moreover Respondent could have brought in the payroll records, which Sefton admitted were studied in preparation for the hearing, to establish with certainty its actual practice with respect to holiday pay. This omission is especially significant in view of Sefton's testimony that a number of "quits" had received holiday pay through "oversight" in the personnel department , and Ashmore's testimony that it was only when reading over the contract in the course of a "general discussion " about vacations that he and Jesse became aware of the fact that Bolsen and Danewicz had been eligible for the Memorial Day holiday pay since they were out on occupational sick leave . It could be inferred that Respondent 's personnel officials had different ideas front Sefton's, and that employees on leave and perhaps other ineligibles must have benefited from the same oversight. The testimony just referred to, coupled with Respondent's failure to produce its payroll records, suggests that prior to May 31 , 1965, Respondent 's actual practice was to pay holiday pay to everyone with seniority who worked the 8-hour shift in the 2 weeks before the holiday. However, such suggestion is insufficient to satisfy General Counsel 's burden of proof on the issue of whether or not Respondent's denial of holiday pay to the strikers represented a departure from established practice. General Counsel did not produce employees to prove such practice. The payment to Dale Bowen proved nothing since he was being discharged under unhappy circumstances and Sefton admittedly paid him more than was required by the contract . The express exclusion of striking employees from the funeral- and jury-pay provisions of the contract, pointed to in counsel 's brief, is equally without significance . Those clauses covered employees not even on seniority, so that an express listing of nonqualifying absentees was essential. Moreover the Union's conduct during the negotiations preceding the end of the strike tends to contradict General Counsel's contention that strikers were deemed to be "on the active payroll." It has been found above that at no time during the strike did the Union demand payment of the Memorial Day holiday pay to the strikers. On the contrary Angle and " Respondent admittedly failed to pay the holiday pay to Bolsen and Danewicz, who were on occupational sick leave on May 31 and therefore should have been paid However, no demand for the pay was ever made on their behalf except as part of the general demands on July 20 and August 11. It cannot be inferred that Respondent would have refused them their holiday pay if their special situation had come to its attention In any event, the matter has been remedied. the other bargaining committee members did not protest when Harper commented that the Memorial Day holiday had been lost . Also, when proposing payment of birthday- holiday pay to strikers the Union argued unfairness, not departure from established conditions of employment. By contrast , during the strike the Union did demand payment of the extra vacation pay for senior employees , and it did so as soon as it became due under the terms of the expired contract. Angle's testimony that the reason no demand was made for the holiday pay during the strike negotiations was that the bargaining committee thought the employees "had it earned" is inconsistent with this established fact. The necessary inference is that the Union , which had negotiated and administered the contract, did not consider strikers on the active payroll and was acting accordingly. As the General Counsel failed to prove by a preponderance of the evidence that the established terms of employment required payment of Memorial Day holiday pay to the strikers , the allegations of the complaint that the holiday pay denied the strikers was "accrued " have not been sustained , 13 and the allegation of violation of Section 8(a)(5) falls. Counsel for the General Counsel contends that Respondent's denial of the holiday pay was motivated by antiunion considerations. This contention is based on the fact that during the strike Respondent withheld the extra vacation pay which became due and said the employees would not get it until they returned to work .'" Counsel's position is that this establishes Respondent's animus and retaliatory frame of mind with respect to the strikers and that it therefore supports the conclusion that the denial of Memorial Day holiday pay was similarly retaliatory. Sefton's testimony that vacations were canceled and vacation pay withheld because the contract had expired lends further support to this contention since the vacation moneys in question had been earned prior to the strike. Under the expired contract employees who quit and even those involuntarily terminated were entitled to be paid for all vacation earned up to the date of separation. Respondent's action in thus unilaterally changing that condition of employment after the expiration of the contract represented a lapse by Respondent in its statutory duty to bargain collectively with the Union.15 Moreover , since the only employees selected for the change in conditions of employment were union- represented strikers , its action necessarily had the effect of discouraging strike activity and union membership.16 However, unlike the case of the vacation pay, Respondent never announced an illegal reason for withholding the holiday pay. The paramount fact is that the strikers were not on the active payroll and that the holiday pay never accrued. It cannot be inferred that but for Respondent's retaliatory motivation it would have been paid. On the contrary , Sefton's uncontradicted testimony that employees on leave were not on the active payroll, the Union's acquiesence in Harper 's comment that the holiday " This was not alleged as an unfair labor practice in the complaint, apparently because after the strike Respondent voluntarily paid all the moneys due I` Herman Sausage Co, Inc, 122 NLRB 168, 171 , enfd 275 F 2d 229, 234 (C . A 5), Phelps Dodge Copper Products Corp ,101 NLRB 360.369 , 387-389 11 Great Dane Trailers, Inc , 150 NLRB 438 MUELLER CO. had been lost, and its failure to demand the holiday pay during the strike as it did the vacation pay, all tend to establish that the Respondent's animus towards the strikers was not the reason it refused to pay the holiday pay. 17 In view of the foregoing it is unnecessary to dispose of the various legal defenses urged by Respondent in its answer and its brief. It should be noted, however, in connection with those defenses, that the Trial Examiner finds that the parties did not bargain out, and the Union did not waive, the Memorial Day holiday pay; and that neither the 1962 contract nor the present contract contains provisions for arbitration or any other adjustment of disputes other than the within-company grievance procedures and strike and lockout. Upon the basis of the foregoing findings of fact and of the entire record in this case, the Trial Examiner makes the following: 'r In the absence of proof that the denial of holiday pay was a departure from the terms of employment established by Respondent's contract with the strikers' representative, such CONCLUSIONS OF LAW 513 1. Respondent, Mueller Company, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By withholding from and refusing to pay employees holiday pay for Memorial Day 1965, Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), or (5) of the National Labor Relations Act, as amended. RECOMMENDED ORDER In view of the foregoing findings of fact and conclusions of law it is recommended that the Board enter an order dismissing the complaint in its entirety. denial must be deemed to be part of the normal loss of wages incident to a strike and, therefore, notper se discouraging of union membership or activity