Indiana & Michigan Electric Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indiana & Michigan Electric Company and Ralph Cal- lender and United Steelworkers of America, AFL- CIO-CLC. Cases 9-CA-10874-1 and 9-CA- 10874-2 June 16, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On February 16, 1978, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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, findings,' and conclusions of the Administrative Law Judge, as modified below, and to adopt his recommended Or- der. We agree with the conclusion of the Administra- tive Law Judge that the Respondent violated Section 8(a)(3) and (I) of the Act by withholding accumulat- ed leave pay, but we do so for reasons other than those articulated by the Administrative Law Judge. Briefly, the record shows that Respondent and the Union were parties to a collective-bargaining agree- ment that expired on November 17, 1976, at which time the employees went on strike. Respondent's crews work two 6-hour shifts each 24-hour working period and normally remain aboard the boats for 21 consecutive days before being re- lieved by another crew. Each employee will then nor- mally remain ashore for 21 days during which time he is off duty and on leave. Sometimes business ne- cessity requires that employees stay on duty for more than 21 days or report for duty before their 21 days of leave are finished. For each day worked an em- ployee receives wages for 2 days: the day worked and a day of leave. There are two pay periods a month. When an employee is paid, the check stub indicates whether the pay the employee is receiving is for a workday or a leave day. The "work" days are Although the Administrative Laws Judge found that Respondent is a subsidiary of American Electrical Power Service Corporation. the record establishes and we find that Respondent is a subsidiary rather of American Electric Power Company. always paid first before any "leave" days are paid out. Employees cannot choose to take a lump sum payment in lieu of actual leave time. Any excess leave days are accumulated until the employee has opportunity to go on leave. (Vacations are, however, paid out in a lump sum as a percentage of annual pay.) On November 17 the strike commenced, and all employees on duty at that time walked off the boats (with the exception of a small security force which remained on duty by agreement of the parties). On November 18 a written notice was mailed to all em- ployees by George Shamblin, manager of the river- boat division, announcing the pay policy to be fol- lowed during the strike. Employees who left the boat to go on strike would not be placed on accumulated leave status and would receive no pay from the time they went on strike. Employees who were already on accumulated leave would remain on leave status for a total of 21 days since they last left the boat (or less if they had not accumulated 21 days of leave time.) If those employees did not return to work after the 21 days, their pay would cease. The memo ended, "Pay will begin for an employee when he returns to work." Respondent followed the above-described leave poli- cy until the strike ended on December 29. In our view, Respondent's actions evinced an in- tent to discourage employees from exercising their Section 7 rights by coercing them to abandon the strike.2 It was not until after the employees had gone on strike that Respondent promulgated the policy of refusing to pay employees accumulated leave until they returned to work. Each employee who had been on duty at the inception of the strike was informed that he would receive no pay from the time of the strike, that he would not be placed on accumulated leave pay status, and that "pay will begin for an em- ployee when he returns to work." If the employees who had already been on leave did not report for work, i.e., abandon the strike, after the 21-day pe- riod, all pay would stop regardless of whether that employee had additional accumulated leave time. Again, pay would begin when the employee returned to work, despite the fact that, for both groups of em- ployees, the pay had already been earned. The purpose of the leave policy clearly was to force employees to abandon the strike. Whether or not Respondent also had valid business reasons for withholding pay already earned is of no consequence here. Such discriminatory action, in retaliation for employees' exercise of rights guaranteed in Section 7 of the Act, is prohibited. Accordingly, Respondent : Respondent. in its brief, argues that, "one of the few countervailing economic weapons available to the employer was to defer accumulated leave status for the striking employees until the termination of the strike," thus, conceding that its purpose was to force the strikers back to work. 236 NLRB No. 110 986 INDIANA & MICHIGAN ELECTRIC COMPANY has violated Section 8 (a)(3) and (1) of the Act by initiating a policy, in direct response to the strike, of withholding pay that was already worked for and earned, that was clearly calculated to force employ- ees to abandon the strike. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Indiana & Michigan Electric Company, Cedar Grove, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached Appendix C is substituted for that of the Administrative Law Judge APPENDIX C NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Rela- tions Act and has ordered us to post this notice and we intend to abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To act together, including the right to strike, for collective bargaining or other mutual aid or protection To bargain collectively through representa- tives of their own choosing To refrain from any or all these things. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of these rights. WE WILL NOT withhold wages already earned, or otherwise discriminate against employees, be- cause of any union activity, including strikes. WE WILL pay employees interest for the time their wages were withheld. INDIANA & MICHIGAN ELECTRIC COMPANY DECISION STATEMENT OF THE CASE JAMES M FITZPATRICK, Administrative Law Judge: This case involves the right of an employer, during an economic strike, to defer until after the end of the strike leave status and pay accumulated by strikers before the strike. As set out below, I find withholding the pay was an unfair labor practice. These proceedings originated on December 7, 1976,1 with charges filed by Ralph Callender, an individual, against Indiana & Michigan Electric Company (herein called Respondent). On December 8, United Steelworkers of America, AFL-CIO-CLC (herein called the Union) also filed charges against Respondent. Thereafter, the Union amended its charges on February 15, 1977, and Callender amended his on February 25, 1977. On February 3, 1977, a complaint based on the initial charges issued and on March 29, 1977, an amended complaint based on the amended charges issued alleging that Respondent had en- gaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act) by refusing to pay em- ployees for accumulated leave time during an economic strike in effect from November 18, 1976, to January 5, 1977. Respondent answered, denying it had refused to pay for accumulated leave time or had engaged in unfair labor practices. It admitted all other allegations in the complaint. The issues were heard before me at Charleston, West Vir- ginia, on May 18, 1977. Based on the entire record, including my observation of the witnesses and consideration of briefs filed by the Gen- eral Counsel and Respondent, I make the following: FINDINGS OF FACT I THE EMPLOYER INVOLVED Respondent, an Indiana corporation. is a public utility engaged in the generation, transmission, and sale of elec- tric power in Indiana and other States.2 During the calen- dar year preceding issuance of the complaint, a period rep- resentative of its operations, Respondent received gross revenues exceeding $250,000 and purchased and received goods and materials valued at over $50,000 which were shipped to its Indiana facilities directly from outside Indi- ana. I find Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. Among other activities Respondent operates a River Transportation Division, which has its principal office at Cedar Grove, West Virginia, and is involved in the trans- portation of coal to various electric power plants by tow- boat and barge on inland waterways of the United States, specifically the Ohio, Kanawha. and Green Rivers. It is i All dates herein are in 1976 unless otherwise noted. -Respondent is a subsidiary of American Electrical Powver Service Corpo- ralion headquartered in New York (ity. 987 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these operations which are involved in this case. I. THE LABOR ORGANIZATION. THE COLLECTIVE AGREEMENT. AND THE STRIKE Respondent has recognized and bargained with the Union as the representative of about 200 of its employees in two bargaining units, each with its own local union and each having a separate contract. One unit, commonly called the officers unit, is represented by Local 14529 of the Union. The other, called the deckhands unit, is repre- sented by Local 14811 of the Union. Respondent and the Union on behalf of each of the units were parties to two collective-bargaining agreements covering the 3 years preceding November 18, 1976. The officers unit contract covered master-pilots, pilots, operators, engineer-deckhands, and engineers. As of the contract expiration date there were about 90 employees in this unit, only about 37 of whom are involved in this case, the other 53 being master-pilots and pilots for whom the General Counsel seeks no relief. The deckhands unit contract applies to all other nonsu- pervisory personnel on the boats and docks which number about 120. However, this case only involves 85 of these who worked on boats, the other 35 being "dock" or "termi- nal" employees about whom there is no issue. When these collective-bargaining agreements expired at midnight on November 17, 1976, employees covered by them commenced an economic strike. Prior thereto the parties had held four or five negotiating sessions looking toward successor agreements but had not reached agree- ment. During the strike, negotiations continued, eventually resulting in agreement on December 29 or 30 when the strike ended. Except for a limited number of employees, who by special agreement between Respondent and the Union remained aboard as a security watch, all but four covered employees honored the strike. 111. THE Al.LEGED UNFAIR LABOR PRACTICES A. Tours of Duty and Leave Respondent's crews, including the employees involved here, work two 6-hour shifts each 24-hour workday and normally remain aboard the boats for 21 consecutive days before being relieved by another crew. Thereafter, they normally remain ashore for 21 days during which they are off duty and on leave. On occasion, when operations so require, work tours extend beyond 21 days, and sometimes crews are recalled before they have used the 21 days leave. For each day worked, an employee earns wages for 2 days, the day worked and I day of leave. Thus, with a normal 21-day tour of duty an employee earns pay for 21 workdays and 21 leave days. Employees are allowed to accumulate leave they have been unable to use because of extended tours aboard or because of early recall to duty. Most, if not all, of the employees here involved had accu- mulated such unused leave. B. Pay Periods and Paydays Riverboat Division crews have two pay periods each month, the first covering the first 15 days of the month, and the second covering the balance of the month. Payday for the first of these pay periods is on the 22nd of that month and the second pay period is on the 7th of the fol- lowing month. Each paycheck includes pay at the employee's job classi- fication rate for the number of days in the applicable pay period for which the employee is entitled to pay, whether workdays or leave days. But the paycheck stub indicates how many workdays and leave days are being paid for. C. Pay During the Strike When the strike commenced at midnight on November 17, approximately half the crews were on duty aboard boats and half were on leave. All those on duty walked off the boats.3 On November 18, immediately after the strike com- menced, George Shamblin, manager of the Riverboat Divi- sion, mailed a written notice to all division employees stat- ing in part as follows: Here is the pay policy the company will follow dur- ing the strike: Employees who left the boats and went on strike shall receive no pay from the time they left the boats. They shall not be put on accumulated leave pay sta- tus. Boat employees now on accumulated leave shall be kept on that status until 21 days from the time they last left the boat, or earlier if they had less than 21 days accumulated. If they do not come back to work then, their pay will stop. Terminal employees on strike shall receive no pay from the time they went on strike, Pay will begin for any employee when he returns to work. On November 22, the payday following the start of the strike, which covered the first 15 days of November, all employees received their normal pay for the pay period. On the next payday, December 7, those who walked off received pay only for November 16 and 17. Those on leave at the start of the strike received accumulated leave pay in accordance with the notice. When Ralph Callender, the individual charging party here, who was employed by Respondent as a deck engi- neer, received his copy of this notice, he telephoned Sham- blin. Being unable to reach him, he talked instead with Respondent's personnel manager, Musgrave, and asked on what ground Respondent was taking this action. Musgrave indicated that accumulated leave pay was similar to vaca- tion pay or sick leave pay and that Respondent was justi- fied in stopping it at any time. Callender protested that he did not understand how they could hold up payment of 3As noted hereinabove, Respondent and the Union by mutual agreement arranged for a small security watch of 16 or 17 employees to remain aboard during the strike. 988 INDIANA & MICHIGAN ELECTRIC COMPANY money the employees had already worked for and earned. After talking with Musgrave. Callender waited for his next paycheck to see whether accumulated leave pay would be included. It was not, so, in early December, he called on Shamblin. Among other things, he showed Shamblin the charges he was preparing to file with the Board. During their conversation, Shamblin reaffirmed the position taken in his November 18 notice. He told Callender the employ- ees were not going to get beat out of their money, that they would get it, but would have to return to work first. As already found, subsequent to settlement of the strike, the employees received all unpaid accumulated leave pay earned before the strike. D. Respondent's Reasons Shamblin's direct testimony reveals two reasons for withholding accumulated leave pay during the strike. First, Respondent considered it a legitimate economic weapon to combat the strike. Second, Respondent hoped to avoid ex- pected problems in manning its boats after the strike end- ed. In this latter respect, the record shows that during an economic strike 3 years earlier it continued to pay out ac- cumulated leave pay without interruption to the extent that employees had earned it. By the end of the strike, all accu- mulated leave having been used, employees were eager to return to work promptly so that their pay could resume. Those with greater seniority and qualifications exercised their seniority to return for the first tour of duty following the strike even though some thereby "bumped" more jun- ior crewmen in lower job classifications. This left many more junior employees on shore without incoming pay- checks. Following that tour of duty an inordinate number of employees in higher classifications came ashore for the normal leave. The crews relieving them included an un- usually large number of the more junior employees and too few with adequate experience in the higher job classifica- tions so that Respondent had difficulty marshaling compe- tent crews. By contrast, when the strike involved in the present case ended, crews returned to work in a normal mix of greater and lesser qualified employees which facilitated efficient manning of the vessels. E. Discussion The General Counsel asserts that by deferring employee leave status and pay until after the strike ended or until an employee returned to work, Respondent withheld wages already earned while dangling before the employees imme- diate payment to entice them to abandon the strike. This, it is urged, was inherently destructive of vital employee rights which necessarily discouraged membership in the Union in violation of Section 8(a)(1) and (3) of the Act. In support of this contention, counsel cites James W. Whitfield, d/b/a Cuttlen Supermarket, 220 NLRB 507 (1975); Cavalier Divi- sion of Seeburg Corporation and Cavalier Corporation, 192 NLRB 290 (1971); and N.L.R.B. v. Great Dane Trailers, 388 U.S. 26 (1967). 4 The Whitfield and Cavalier cases are not entirely analo- gous because there, as in G. C. Alurplv ('onlpanv. 207 NLRB 579 (1973), and unlike the present case, the em- ployer made no showing of business justification for with- holding accrued vacation benefits during an economic strike. The same factual distinction can be made, as Re- spondent points out, respecting Great Dane Trailers, supra. But that case, nevertheless, remains persuasive authority for the General Counsel because of the general principles stated. The General Counsel contends that no economic justifi- cation has been shown here. But, as set out hereinafter, I find some, although not very weighty. business justifica- tion. A further point made by the General Counsel, which I deem to be the crux of this case, is that Respondent held back wages already earned by some 182 employees because they went on strike. Respondent argues to the contrary that after the strike began employee rights to accumulated leave pay were not fully accrued, that it did not withhold anything to which they were then entitled, that leave pay is inseparable from leave status, and that it only deferred (or rescheduled) leave status (and with it leave pay) until after the strike when it had less adverse impact on Respondent's opera- tions. Respondent urges that Texaco, Inc.. 179 NLRB 989 (1969). in which the Board held that an employer did not violate Section 8(a)( ) and (3) by deferring the scheduling of paid vacations until after a strike ended, is analogous and should be dispositive. I disagree, because although Texaco, supra, on its facts is quite similar to the present case, it involved withholding of a fringe benefit while this case involves the mainstream of compensation. This quan- titative difference is, in my view. sufficient to be a differ- ence in kind. Respondent also claims that its deferral of accumulated leave status and pay was a legitimate economic weapon in combating the strike. citing N.L.R.B. v. Insurance .A4gcnt. International Union, AFL CIO (Prudential Ins. Co.), 361 U.S. 477 (1960); American Ship Building Co. v. N.L.R.B., 380 U.S. 300 (1965): and N.L.R.B. v. Burns International Security Services, In(.. 406 U.S. 272. 288 (1972). In its brief Respondent argues as follows: Here the Union exercised its undeniable right to strike the employer and to exert its maximum economic power by seeking to shut down the Company's barge operations. That exercise of power was largely suc- cessful. One of the few countervailing economic weap- ons available to the employer was to defer accumulat- ed leave status for the striking employees until the termination of the strike. Logically. this argument has appeal if only the cases Re- spondent cites on this point are considered. However. the Supreme Court has spoken further in Great Dane Trailers, Inc., supra, at 33--34. indicating that management and labor are not completely ungoverned gladiators in the economic See a.ls the followii e cases noted in Respondent'S hrief N 1. R B X Duman lndrir and M,' c hfh , Hoi t,. In . 435 F 2d 612 (( A 7. 1970): 5 1 R B , bfr, A ( 3,9rlnrti. 397 : 2d O96 ((' A, 1" 9681) and Anuth Bri,. I,., 229 NI RH 12(04 19j77 98X9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arena in view of the Board's "duty to strike the proper balance between the asserted business justifications and the invasions of employee rights in the light of the Act and its policy." Respondent also asserts that it treated strikers and non- strikers "equally." This is based on Shamblin's testimony that they were not treated "differently." In fact, they were treated differently. When the strike began Respondent was in a dilemma. Although the Company knew that those who walked off the boats were on strike, it did not know wheth- er those on leave would strike. The Company made no immediate effort to test the will to strike of those on leave by forthwith recalling them to duty.5 It allowed them to remain on leave with pay uninterrupted until 21 days of their leave had been used. Thus, economically they were better off during the early part of the strike than those who walked off boats when the strike began, in that their pay continued to flow until the end of their normal shore leave. I find that Respondent temporarily, at least, treated those on leave, whose attitude toward the strike was still untest- ed, better than those who walked off the boats, and offered the best treatment of all to any who would abandon the strike. This discrimination demonstrates that Respondent's action was "inherently destructive of employee interests." Great Dane Trailers, Inc., supra at 32-34, and cases there cited. At the core of Respondent's position is its insistence that leave pay and leave status are inseparable. It reasons that those who walked off the boats had no fully accrued right to accumulated leave because under the expired contracts crews became entitled to leave (a) upon being relieved by another crew or (b) by mutual agreement between an em- ployee and the company when leave status would not inter- fere with normal operations.6 This argument is supported by the contracts to the ex- tent that leave pay was associated with leave status in those provisions which bear upon the Company's normal method of operation. But in my opinion the argument is strained when applied to a postcontract economic strike situation. Cf. Glomac Plastics, Inc., 194 NLRB 406, 412 (1971). There must surely be some situations in which entitle- ment to accumulated leave pay is not inexorably tied to leave status. For example, I cannot believe, although there The expired collective-bargaining agreements had permitted the Compa- ny to recall crews from leave to active duty when necessary. The officers' unit contract, art. XVI(d), provided that: Accumulated time shall be taken in a manner which will not interfere with the normal operations of the Company's business. Also subsec. (f) of the same agreement provided: The Cornompany agrees to see that an employee subject to this Agree- ment takes his time off at a mutually) agreeable time that will not inter- fere with the proper operations of the boat. The deckhands' unit contract, art XX. subsec. 3. provided that: The Company agrees to see that all employees take their time off at a mutually agreeable time that will not interfere with the proper opera- tion of the boat. Also art. XXII, subsec. (d, of that agreement provided the following: Free time shall be taken in a manner which will not interfere with the normal operations of the Company's business and free time may not be resold to the Company. is nothing in the record on the point, that Respondent would deny or delay payment of accumulated leave pay which has already been earned to an employee who resigns or to one who is discharged. Respondent is not in a strong- er position because a strike existed and withholding pay would strengthen its hand. The Board has already ex- pressed disapproval of such a defense. See Cavalier Division of Seeburg Corporation, supra. It is important, it seems to me, to recognize that the system of alternating periods of duty and leave, peculiar to this industry, exists to accommodate Respondent's tow- boat operation which normally requires that crews remain aboard 24 hours a day for 3 weeks. The necessary 3 weeks respite which follows benefits the employer as well as the employees, in that it assures rejuvenated crews for subse- quent duty. The pay system, in evening out the flow of compensation, clearly benefits the employees. But in no case does a crewmember receive compensation (whether designated duty pay or leave pay) for which he or she has not already worked. Being on leave does not earn the pay. It is the work which earns all the pay as well as the leave. So it does not follow that use of the one benefit (leave) is a necessary condition precedent to receiving the other bene- fit (wages already earned). While recognizing that this system of duty, leave, and even flow of compensation benefits the employees, it ap- pears absolutely essential for the efficient operation of Re- spondent's business and exists chiefly for that reason. When that system becomes inoperative, as it did in this case when the collective-bargaining agreements expired and the strike began, it is reasonable that the employer rather than the employees bears the burden of that break- down and it is unreasonable for the employees to be de- prived, even temporarily, of wages already earned. The un- reasonableness is underscored by the nature of what was withheld, that is, not a mere fringe benefit, but the whole wage for which employees had already given their labor. Thus, their ability to provide the necessities for themselves and their families was directly affected. 7 From Shamblin's testimony, it is clear that one reason the Company chose this action was to combat the strike. I find the impact of this was not comparatively slight, but rather was inherently destructive of important employee rights. In its brief, Respondent argues that it had two substan- tial, legitimate business justifications for its action. The first of these asserted justifications is: The Company was attempting to operate during the 7The public policy against undue delay in paying wages to laborers is exemplified by legislative enactments in various States in the Ohio Valley, where Respondent operates. By way of illustration, Pennsylvania, Ohio, Kentucky, West Virginia, Indiana, and Illinois all border the Ohio River or its tributaries in the vicinity of Respondent's operations. In the codes of most of these States, a sanction is provided for withholding wages already earned. For instance, the Ohio Rev. Code Ann §4113.15 provides that semi- monthly payment wages is required of an employer and failure to do so will result in a misdemeanor conviction. Similarly, West Virginia Code 123, Ch. 5-5 also imposes misdemeanor penalties on employers who refuse to pay wages already earned. Illinois (ILL Rev. St. Ch. 48. §39 m 4) and Pennsylva- nia (Pa. Stat. Ann. tit. 43, §251-252) are also clear in the penalties, which are imposed for withholding earned wages. Even Indiana, which does not specifically address the issue, acknowledges the need to provide for a rem- edy in the event of a change of pay rate without notice. (Ind. Code 122, Ch. 2--8 1.) 990 INDIANA & MICHIGAN ELECTRIC COMPANY strike. In order to operate and survive financially dur- ing the strike, it was necessary that all available em- ployees report to work. .... In order to get all avail- able employees who chose to work during the strike, the Company deferred placing employees on accumu- lated leave since to do so would definitely "interfere with the normal operation of the Company's busi- ness." In referring to Respondent's action as a deferral of leave, counsel glosses over the essence of Respondent's conduct which was deferral of wages already earned. Moreover, if, as Respondent contends, employees being on leave status was interfering with normal operations, such might have been alleviated by immediately recalling those already on leave, a measure which the Company did not take. What may fairly be said is that Respondent acted to combat the strike, which legitimately could have been done if such were not inherently destructive of important em- ployee rights. The second asserted business justification, that Respon- dent acted in part to assure viable crews for tours of duty following the end of the strike, has some merit. The record shows that 3 years earlier Respondent had experienced a problem of this nature, and also that the problem did not recur after the instant strike. Accordingly, I find some busi- ness justification existed for Respondent's action. But it does not seem to me to be a substantial reason for holding back wages already earned. In the first place, it was not the sole reason for Respondent's action. Shamblin's testimony indicates that it was not the only reason. The circumstanc- es indicate that combating the strike was the major reason. Secondly, the problem of scheduling duty tours following the end of the strike was a logical subject for collective bargaining. The necessity for punishing employees by uni- laterally withholding their earnings in order to achieve this business objective is not apparent. In sum, I find here that on the one hand Respondent had a legitimate, but insubstantial, business reason for its action, but, on the other hand, that action had a serious, adverse impact on employee rights. Among other adverse results, Respondent's action discouraged membership in the Union. In these circumstances no specific showing of a subjective intent to discriminate is required to establish vi- olations of Section 8(a)(1) and (3) of the Act. Radio Offi- cers' Union of the Commercial Telegraphers Union, AFL v. N.L.R.B., 347 U.S. 17 (1954); N.L.R.B. v. Erie Resistor Corp., et al., 373 U.S. 221, 227-229, 231, 236-237 (1963); N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21 (1964). See N.L.R.B. v. Brown et al., d/b/a Brown Food Store, et al., 380 U.S. 278, 282-283, 287 (1965); N.L.R.B. v. Great Dane Trailers, supra. Respondent has not carried its burden of showing a substantial business justification for its action. N.L.R.B. v. Frick Company, supra. Accordingly, I find Re- spondent violated Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in opera- tions affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By withholding from November 18, 1976, to January 7, 1977, payment of wages for accumulated leave time of employees listed in Appendices A and B hereto, Respon- dent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action designed to implement the policies of the Act. It is unnecessary here to order Re- spondent to reimburse affected employees for lost earnings because Respondent has already done so, subsequent to the conclusion of the strike. However, because the discrim- inated employees, listed in Appendices A and B hereto, are entitled to interest for the time earned wages were withheld beyond a normal payday, I will order that Respondent make each of them whole in accordance with the standards set forth in Florida Steel Corporation, 231 NLRB 651 (1977).8 No deductions for interim earnings are indicated because the wages involved had already been earned. Considering that Respondent has various on-shore facil- ities and numerous vessels, and in order to assure that all affected employees are apprised of employee rights in- volved herein, I recommend that Respondent post appro- priate notices on all its towboats, at all its docks, and at its Cedar Grove and Green River facilities, and also mail a copy of the notice to each employee in the bargaining units involved herein. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 9 The Respondent, Indiana & Michigan Electric Compa- ny, Cedar Grove, West Virginia. its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Withholding payment of wages earned by employ- ees. or otherwise discriminating against employees, be- cause they engage in strikes or other union or protected activity. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action deemed neces- See. generally, Isis Plumbhin & Hearing (;ompunri. 138 NLRB 716 (1962). In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein. shall, as provided in Sec 10248 of Ihe Rules and Regulations. he adopted hb the Board and become its findings, conclusions and Order, and all objections thereto shall he deemed wailed for all purposes. 991 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sary to effectuate the policies of the Act: (a) Make whole the employees listed in Appendices A and B by paying each interest on wages withheld for the period withheld 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, all records necessary to analyze the amount of interest due under the terms hereof. (c) Post at Respondent's facilities at Cedar Grove and Green River, at all its docks, and on all its towboats, and mail to each employee in the bargaining units involved herein, copies of the attached notice marked "Appendix C." 0 Copies of said notice, on forms provided by the Re- gional Director for Region 9, after being duly signed by an authorized representative of Respondent, shall, immedi- ately upon receipt thereof, be mailed to the employees by Respondent and also posted for a period of 60 consecutive days, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said post- ed notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 10 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National l.abor Relations Board." APPENDIX A The 83 employees on duty aboard vessels who walked off when the strike began at midnight November 17, 1976. ABSHER. EUGENE E. ALDERSON. JAMES BAILEY, PAUL L. BEALE, NELLIE E. BOGGS. CHARLES E. BONEY, DONNIE L. BONEY, RONNIE D. BRADFORD, BRENT E. BROWN, MIKE D. BURDETTE. FRED BURKE. WALTER L. BUSH, DONALD E CANTU. JOHN E CALLENDER, RALPH E. CARTER, CHILA COOPER. JIMMIE L. CRACE, LONIE F DARST, EARL B DOMINEY. MARGARET H. DOSS, BRUCE H DYE, KEITH A. FERGUSON, DAVID FISHER, DONALD E. FREER, JOHN R. LACY. EDITH E. LEG(;. JEFFREY L. LEWIS, TOMMY MCCOMAS. ROBERT MCLAU(GH.IN, HARRY MCSURLEY. GREGORY MOREHEAD. FRED E. NEWMAN, SHIRLEY L. NIBERT, BRUCE H. NULL., DAVID E. PARSONS, JACK PAUL.EY, DONALD PERKINS. WILLIAM PERSINGER, GARY E. PHILLIPS, JR., ROY PIKE. JR, JAMES PRICE. JAMES E PRICE, RICHARD PULLEN, STEPHEN R. REED. JAMES S. ROBERTS. JAMES M. ROCKER. 1, JOHN A. ROUSE, MARY RUPE, FLOYD GARRETSON. LONA A. GIBBEAUT, SIDNEY O HALL, BIL.LY T. HARLESS, JOHN W. HARTLEY, JAMES R. HENRY, ROBERT E. HIGGINBOTHAM, RALPH HIGGINS, KENNETH HUSSELL, HARRY A. JARRELL, VIRGIE E. JOHNSON, ICIE F. JOHNSON, NELLIE J JONES, PHILIP KEEFER, WILMER KESSINGER, JR.. LLOYD KESTERSON, JOHN KING, WILLIAM KIRK, ELLA KIRKPATRICK. RICHARD L. SALT. ALBERT SCHERER, ROBERT SHORT, LARRY W. SIMPSON. JAMES SPANGLER. WILLIAM R. STOVER, DARRELL W. STRUGEON, ALLEN E. SWANN, ALLEN F. TABIT. SFRONA M. TERRY. ARTHUR R. VANNATER, LEE ROY WAMSLEY, WILLIAM WAUGH, MARGARET WEISEND, MICHAEL A. WOOLWINE. SYLVIA YOUNG, EULA M. APPENDIX B The 99 employees on accumulated leave when the strike began at midnight on November 17, 1976. Abrams, Ralph J. Abston, Roy D. Allen, Myrtle I. Arbaugh, William K. Ater, Herbert R. Bailey, Donald Bailey, Loran A. Bailey, Lyal G. Baker, Daniel Bays, David B. Blackstock, Ronnie D. Brewer, Terrance K. Briggs, Keith A. Canterbury, Jr., Caryl Canterbury, Roy L. Carter, Robert L. Casdorph, Bobby Connard, Ronald D. Copley, Mark A. Cox, John Cowan, Ronald K. Crimmons, Kenneth Damon, Steven T. Dawson, John L. Dishman, Kenneth Elder, Daniel J. Estep, Scotty L. Estes, Arthur E. Fouts, James Franklin, Betty L. Gardner, Edward Garrison, Agatha M. Given, Yevetta E. Gordon, Elliot Greenway, Kenneth E. Gruenbaum, Daniel J. Kierstead, Carl King, Eva E. Ladlie, William B. Lawrence, Dolly H. Layton, Terry L. Lee, Lawrence Lemaster, Randy M. Lucas, Henry L. Lyden, Marion McCort, Gerald McDermitt, Charles P. McKinney, Patrick O. Meadows, Okey R. Miller, Corbett M. Miller, Robert M. Montgomery, Robert Moore, Nathan E. Patterson, Carol Patterson, Howard Payne, James Phillips, William J. Pickern, Claudette J. Poehlman, Harold W. Pritt, John M. Ramey, Howard Reavis, Terry D. Rife, James B. Rogers, Kenneth N. Roy, Rex L. Rupe, Bobby G. Sayre, Irene N. Scarlas, Randall E. Sherels, Eugene Sigman, Austin E. Simmons, Ruth J. Skiles, Brenda J. 992 INDIANA & MICHIGAN ELECTRIC COMPANY Hansgen, Henry Harris, Alvin R. Hayes, Hershel Burdell Hayes, James B. Hess, John W. Higginbotham, Gary Higginbotham, Harold Hill, Robert Sorden, David F. Stephens, William G. Tanner, Jerry L. Taylor, Allen C. Taylor, Dennis R. Taylor, Dwight L. Taylor, Homer D. Terry, Ada M. Holcomb, Samuel R. Hudnall. Corbett Jones, Daniel T. Jordan, Delcie H. Thornton, Stanley E. Urban, Dana L. Vannoy, Jr., Donald D. Voight, William Ward, Robert Waugh, Shirley S. Wills, Bernard L. 993