G. C. Murphy Co.

G. C. MURPHY CO. 579 G. C. Murphy Company and General Teamsters, Chauffeurs and Helpers Local 249 a/w Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 6-CA-6340 November 27, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 12, 1973, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to-affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. - ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and hereby is, dismissed in its entirety. MEMBER FANNING, dissenting: I agree with my colleagues in affirming the Administrative Law Judge that the employees here were engaged in activity protected by Section 7 of the Act, and that the strike was legal and not a breach of contract. From that starting point, however, I analyze the case differently. The question here is whether Respondent has violated Section 8(a)(3) and (1) of the Act by denying or withholding from 1 N LRB. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967) 2 Flambeau Plastics Corporation, 167 NLRB 735, 744-745. 3 Cf. The Detroit Edison Company, 206 NLRB No. 116, where the contract had no provision for rescheduling but there had been an actual practice thereunder for about 20 years that the respondent was permitted to and in fact did reschedule vacations as required by necessities, i.e., to maintain an uninterrupted supply of electricity as a public utility. Also, that contract provided that vacation scheduling would be done by management "as per its needs" ; this contract provides that employees choose their own vacation times on a seniority basis. Also, cf Texaco, Inc, 179 NLRB 989, a dismissal which the Respondent here relied on in its brief to the Adnnmstrative Law Judge . That contract provided that the section dealing with vacations was to be governed by the vacation rules of the respondent A booklet of the respondent covering these rules stated that no particular time of year was designated for vacations, which were to be left to the "discretion of Management to arrange the time of vacation to best suit employees' convenience and least interfere with the 207 NLRB No. 73 employees their prescheduled vacation benefits solely because they engaged in the sympathy strike. I view the denial of accrued vacation benefits when due, solely because the employees were engaged in protected concerted activities, as inherently destruc- tive of employee rights, hence violative of Section 8(a)(3) and (1) of the Act.' This Board has long held that denial. of vacation benefits to employees who would otherwise have received them but for the fact they were on strike contravenes the rights of employees to engage in protected strike activity.2 The Administrative Law Judge found that Respon- dent, in rescheduling vacations, acted "according to the procedure dictated by" the terms of the agree- ment, and that such authorization was "implicit in the overall scheme" evidenced by the various vacation provisions. I disagree on both counts. The contract provides in some detail for vacation scheduling, but there is no provision for rescheduling by the Employer once vacation schedules have been determined-in this instance up to 11 months beforehand. There is provision for rescheduling by employees in certain limited circumstances (not applicable here), but even this is further limited by an exception that employee rescheduling not affect a requirement that 50 regular employees be scheduled during each week in June, July, and August.3 The contract is silent on the impact of strike time on vacations. The last sentence of article XV(d)-"No employee shall be permitted to take vacation time as a credit against time lost for any other reason."-is not explicated on this record as having reference to strike time.4 Thus the Board's dismissal in Roegelein Provision Company, 181 NLRB 578, 580, which the Administrative Law Judge considered diapositive, is not authority for dismissing this case. There the contract was negotiated during a strike and specifically provided,that, over a 12-month period, absence from work for 200 hours "for any reason" disqualified the employee for a vacation. As the Board there noted, the record in that case showed that the meaning and scope', of that provision were the subject of repeated discussions during contract Company's operations." The respondent's action m declining to pay for vacation periods that started after the strike began was consistent with a past practice beginning with a 1945 strike, with one exception in 1950 in favor of employees who because of illness had been unable to take rescheduled vacations. Before the 1969 strike, the respondent gave notice that it would again follow the practice of allowing no employee to start a vacation after the strike started . The Trial Examiner found that the vacation pay which went with the rescheduled vacations was larger than it would have been if the vacations had been taken when originally scheduled-a factor not here present-and the Board concluded that it had not been established that the postponing of vacations and the compelling of repayment of advance vacation pay with respect to such rescheduled vacations were inherently destructive of employee rights. 4 The sentence ends a paragraph allowing "split vacations" in certain circumstances, which, when scheduled, shall be altered only for personal illnessor emergency situations See Appendix to Decision of the Administra- tive Law Judge 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations and consequently "there could be no confusion as to its intended impact upon reinstated strikers." In fact, a union steward, pointing to the contract clause, declined to process the grievances of one of the individual charging parties who, had he worked during the strike, would have qualified for a vacation. This is not that sort of case. On this record the majority cannot say, as the Board said in Roegelein, that the Respondent was implementing "a right understood to have been acquired through the collective bargaining process." (Emphasis supplied.) Another contract section relied on as supporting the Respondent's right to reschedule vacations after the strike is equally unpersuasive when considered in context. Article XV(e) ends with the statement that "an employee shall not be paid in lieu of vacation," but the beginning of this brief section simply prohibits carrying unused vacation time over into the next year, and, without punctuation, the section ends with the quoted clause. Reading on, the last section of the article on vacations, article XV(i), specifically provides for vacation pay in situations where the vacation has been earned but cannot be taken. According to this section, a resignation before a vacation is earned means no vacation pay, while employees "resigning after their vacation is earned will be entitled to full vacation pay" if 2 weeks' notice is worked out, and employees dismissed other than for cause will receive pay "in lieu of earned vacation . . . ." In my judgment, the majority has lost sight of the fact, as the Administrative Law Judge did also, that all that is sought here is pay for earned vacations scheduled long before the strike-not a lump sum payment in lieu of vacation. There is also the matter of past practice, on which I cannot agree with the majority and the Administra- tive Law Judge. In the guard strike which took place a few months before the occurrences in this case, Respondent paid accrued vacation benefits to members of this same unit who honored the picket line. The assumption that those benefits were paid in settlement of that dispute is not supported by this record.5 The contract between these parties is the first; the payment of accrued vacation benefits during the guard strike is the only instance of practice under it; I would view it as a meaningful interpretation of the contract. Thus, I agree with the General Counsel that the Respondent here had no contract right to reschedule vacations unilaterally. And, as the Respondent offered no business justification for the rescheduling, it seems clear to me that Great Dane Trailers, supra, and this Board's recent decision in Cavalier,6 require a finding that Respondent has violated Section 8(a)(3) of the Act.7 5 Accepting the testimony of Respondent's personnel director at face value, it appears that Respondent paid the vacation benefits during the guard strike as the result of a grievance meeting. During this strike, Respondent refused to hold a grievance meeting. 6 Cavalier Division of Seeburg Corporation, 192 NLRB 290. 7 One wonders what this Board would do had the charging Union contended that some of the 95 employees required to reschedule their vacations had made firm plans for their long prescheduled vacations, including reservations and advance payments that were forfeited when their normal pay for those prescheduled vacations was not forthcoming. Must the employees demonstrate an economic loss when forced to forego a prescheduled vacation under a contract such as this? Would it suffice if their income level supported the inference of economic loss in circum- stances such as occurred here? DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This case was tried before me at Pittsburgh, Pennsylvania, on March 7, 1973. The charge was filed on September 27, 1972, by General Teamsters, Chauffeurs and Helpers Local 249 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union. The complaint which issued on January 31, 1973, alleges in substance that G.C. Murphy Company, herein called the Respondent, violated Section 8(a)(1) and (3) of the Act by withholding and refusing to pay vacation benefits in order to discourage employees from engaging in protected and union activity. Respondent, in its duly filed answer, denied the alleged unlawful conduct.' Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed on behalf of the General Counsel and the Respondent, I make the following: FINDINGS OF FACT 1. JURISDICTION The Business of Respondent Respondent is a corporation engaged in the operation of chain of retail variety stores throughout Pennsylvania, including a warehouse facility at McKeesport, Pennsylva- nia. During the 12-month period immediately proceeding the issuance of the complaint and notice of hearing, Respondent's gross sales derived from its Pennsylvania operation exceeded $5,000,000 and, during the same period, Respondent received goods valued in excess of $50,000 at said Pennsylvania operations directly from points outside of said State. The complaint alleges, the answer admits, and I find that Respondent, at all times material, is an employer engaged in commerce and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1 At the hearing, Respondent requested permission to strike from its answer, paragraph I I thereof, which affirmatively plead that this proceedi should be deferred to the arbitral process set forth in the applicable collective-bargaining agreement. I granted said request, on Respondent's indication that it sought decision on the merits of the issues raised by the pleadings. G. C. MURPHY CO. 581 II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. Background Broadley stated, the question presented here is whether Respondent denied certain production employees accrued vacation benefits because they refused to cross a lawful picket line established at their place of work in furtherance of a dispute between Respondent and employees in an entirely different collective-bargaining unit. The basic facts are, in the main, undisputed. They show that the Union, at all times material to this proceeding, separately represented a production and maintenance unit and an office clerical unit at Respondent's McKeesport warehouse. Thus, in December 1970, the Union was certified as the collective-bargaining representative for all production and maintenance employees at said warehouse. Thereafter, a collective-bargaining agreement covering said unit was entered, effective June 11, 1971, through August 1, 1973. During the term of that contract, and on March 2, 1972, the Charging Union was certified as the bargaining representative of a separate unit of office clerical employ- ees at this same facility. Following a breakdown in negotiations for a contract covering the clerical unit, the Union, on August 28, 1972, struck Respondent. A picket line was established pursuant to this dispute. Some 350 production and maintenance employees honored this picket line. The picketing continued until September 28, 1972, at which time all employees returned to work. On October 9, 1972, the picketing by members of the office clerical unit resumed and this picket line was again honored by the production and maintenance employees. This work stoppage continued until October 17, 1972, at which time agreement was reached covering the office clerical unit and all employees returned to work. As will be seen infra, the vacation benefits provision of the contract covering the production and maintenance unit, hereinafter referred to as the agreement, specifically establishes a system for advance scheduling of vacations. Under this procedure, in November of the preceding year, 1971 in this case, the production and maintenance employees made requests, in writing, embodying their choice of vacation periods. Pursuant to Respondent's definition of manpower needs and limitations on the number of employees that could be given a vacation in any one week, Respondent recognized employee choice on the basis of seniority. All vacations for the year 1972 were 2 Lawrence Donnelly, an employee in the production and maintenance unit and steward testified, on direct exannation by the General Counsel, that at a negotiation session during the strike an agent of Respondent rejected the Union's demand for vacation pay, stating that no benefits would be paid until the strike was over. On cross-examination, however, he could not recall whether the statement actually made was merely that vacations would be rescheduled after the work stoppage ended. Charles Marsh, personnel manager for the Respondent, testified that he was present at this conversation, and contradicted Donnelly's version of the stated scheduled in accordance with this procedure and well in advance of the strike. The instant dispute arises from the fact that certain of the production workers who refused to cross the picket line in August, September, and October 1972, had prescheduled vacations for times contemporaneous with the strike. At the close of the strike, or shortly prior thereto, the Union requested that these employees be accorded a lump sum vacation payment in lieu of time off with pay. The Respondent refused, stating that upon cessation of the strike vacations would be rescheduled.2 On termination of the strike this is precisely what occurred. Respondent followed the established procedures for selection of vacation time, and all employees covered by the instant complaint were awarded time off, with pay before the end of the year. B. The Issues As heretofore indicated the complaint alleges that Respondent violated Section 8(a)(3) by withholding and/or refusing to pay accrued vacation benefits that were due to employees in August, September, and October 1972. However, no claim is made that any of Respondent's employees were denied vacation benefits in that year, and it is clear from the record that all employees received vacation benefits during 1972. The controversy centers upon and is limited to the form in which these benefits were conferred. Thus, in effect, the General Counsel' argues that Respondent was obligated to provide a lump sum vacation payment to employees who honored the picket line and who for that reason were not working at the time of their scheduled vacation. The General Counsel further argues that Respondent denied such payments in reprisal for the employees' support of the clerical strike and that Respon- dent's rescheduling of time off with pay to those employ- ees, instead of providing lump sum payments, constituted proscribed discrimination. By way of remedy the General Counsel asserts that the employees adversely affected by the rescheduling of vacations suffered a loss of pay for the calendar year 1972 equal to the length of their vacation period. For this reason, the General Counsel claims that, though all employees received time off with pay during the vacation year, the alleged violation should be remedied by affording these employees backpay to the extent of their lost earnings. Respondent, by way of defense, contends that its action did not constitute discrimination since the rescheduling of vacations was entirely consistent with the terms of the governing collective-bargaining agreement. More specifi- cally, Respondent asserts that said agreement provides for a vacation benefit expressly limited to time off with pay, explanation of what the Company would do about vacations According to Marsh, the Union was simply informed that vacations would be rescheduled after the strike. Marsh, further testified, without contradiction that Respondent paid all benefits, other than vacation, during the strike such as hospitalization and insurance. I credit Marsh, whose capacity for recollec- tion appeared sharper than Donnelly's and whose testimony is more plausible, considering the Company's continued payment of other benefits during the strike. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it precludes carrying over unused vacation into the next year and that it specifically bars the payment of a lump sum in lieu of time off. In the alternative, Respon- dent contends that, the employees involved, by honoring the picket line, engaged in unprotected activity since their refusal to work was in contravention of the no-strike clause in the subsisting agreement. C. Analysis It is well established, as the General Counsel observes, that Section 8(a)(3) precludes an employer from reducing or otherwise impairing the benefit level of employees by reason of their having engaged in protected union activity. See, e.g., -Cavalier Division of Seeburg Corporation, 192 NLRB 290. I would also agree with the General Counsel that where illegal motivation is shown, it may well be immaterial that an employer's allegedly unlawful action is consistent with the terms of an applicable collective- bargaming agreement. See, e.g., Laher Spring & Electric Car Corp., 192 NLRB 464. Finally, it is noted that independent proof of discriminatory motivation is not necessarily an indispensable element of the General Counsel's case in a cause alleging wrongful discrimination against employees for engaging in protected union activity; for as the Supreme Court has stated in N.L.R.B. v. Great Dane Trailer, 388 U.S. 26, at p. 34: ... if it can reasonably be concluded that the employer's discriminatory conduct was `inherently destructive' of,important employee -rights, no proof of antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is 'compar- atively slight,' an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. However, absent specific proof of improper motivation, neither the foregoing principles nor any discernible construction of Section 8(a)(3) requires an employer- to depart from a contractually defined formula of general 3 In the view I take of the case, I assume, but need not decide whether or not the allegedly aggrieved employees, in refusing to cross the picket line, were engaged in activity protected by Section 7 of the Act. Were I called upon to resolve that question, I would find that they were. The applicable collective bargaining contains a declaration of intent "to do away with the possibility of strikes," and article XI thereof includes a broad no-strike clause. However, as I read the agreement, that clause is qualified by article IV(c), which states "It shall not be a breach of contract to refuse to work on or from any premises where a strike exists, and no employees can be disciplined for such action." I reject as specious the Respondent's claim that this clause did not effectively remove conduct covered thereby from the prohibition of the no-strike clause. The employee conduct involved here was within article IV(c), and since that clause effectively limits the "no strike" clause, the union activity in question was not in violation of the contract and not for that reason converted to unprotected activity. 4 There was testimony in the record that plant security personnel in the spring of 1972, engaged in a strike and that, pursuant thereto, the production and maintenance workers honored the picket line established in connection with that dispute. In settlement of that dispute, Respondent agreed to make vacation payments to those production workers whose vacations were scheduled to coincide with that strike However, that agreement was not introduced in evidence, and the testimony fails to application and to confer special benefits upon employees because they have participated in protected union activity. As I perceive this record, and the theory underlying the instant complaint, this is precisely what the General Counsel seeks here .3 The instant record is totally barren of credible evidence suggesting union animus or hostility. Nor does it appear that either through contract or practice,4 employees, whose scheduled vacation fell during periods when they were out of work for any reason, had an option of receiving vacation pay in lieu of a rescheduled vacation with pay.5 Indeed, the contract, relevant provisions are attached hereto and marked "Appendix," speaks specifically, and without ambiguity, to the nonexistence of such an election. Thus article XV, Vacation Plan (c) states: (c) It is the intent of this ARTICLE that it be compulsory for eligible employees to take time off for their vacation period and further that no employees shall be permitted to change their scheduled vacation period or any part thereof provided, however, an employee shall reschedule their vacation only if his or her scheduled vacation falls during an Approved or Authorized- Leave of Absence, except that such rescheduling will not affect vacations scheduled pur- suant to (b) of this Article and further provided, that the employee must return to work for a period of two (2) weeks before taking a rescheduled vacation. Article XV, Vacation Plan (d) provides, in material part: No employee shall be entitled to take vacation time as a credit against time lost for any other reason. Article XV, Vacation Plan (e) provides: (e) Unused vacation time cannot be carried over into the next year and an employee shall not be paid in lieu of vacation. Article XV Leaves of Absence, in material part provides: While on an Approved Leave, the employee's continu- ous service record will be maintained and credit granted for the time absent just the same as though at work. However, no employee may receive insurance increments, vacation pay, or other benefits except sick relief or workmen's compensation while on leave of absence. The increments will be received following the describe its content or whether or not it was reduced to writing Since neither the terms of the agreement nor the specific circumstances under which it was reached is a matter of record, I am unwilling to assume that this represented anything other than an ad hoc concession ancillary to the settlement of a strike and in the interest of returning employees to work. In my judgment, such an arrangement does not give rise to a practice sufficient to alter the clear terms of a contract. It follows therefore that Respondent was under no obligation to take a similar course during the clerical strike, and hence its failure to do so at that time was hardly indicative of a discriminatory intent No further evidence of a practice of granting lump sum vacation pay was adduced, and Donnelly, the union steward, had no direct knowledge that any employee had ever worked during his scheduled vacation period and received a pay check covering that vacation entitlement 5 As will be seen this policy was applied without exception among employees on payroll status. However, the contract, in article XV(i) does provide for lump sum vacation payments in the case of employees who have earned their vacation, but, who, prior to taking them, have resigned their employment or been terminated for reasons other than cause, or whose vacations could not be rescheduled because they were in layoff. I deem these narrow exceptions to the prevailing policy as irrelevant to the basic issue involved herein G. C. MURPHY CO. 583 employee's return to work according to the policy covering each one. It is clear from the foregoing that the contract does not authorize vacation pay, but does require employees to take their vacation benefits in the form of time off with pay, and in no other forms I am satisfied and find that Respondent, in rescheduling the vacations of those whose vacations fell during the period of the strike, acted according to the procedure dictated by the terms of the existing collective- bargaining agreement .7 The Board has held that even where employees are denied benefits as a consequence of their protected activity, no inference of discriminatory motivation should be drawn where the evidence establishes that said denial constituted ". . . a lawful implementation of a right .. . acquired through the collective bargaining process." 8 I am satisfied that this case falls well within that principle. In doing so, I note that, for the following reasons, Respondent's application of the contract could not be regarded as anything other than a "lawful implementation" thereof. First, from the standpoint of its impact, the contractual rule against lump sum vacation payments had no special consequence for those absent from work by reason of their support of the clerical strike. As in the case of the strike supporters, it is apparent from article XV that employees who are on approved or authorized leave of absence at the time of their scheduled vacation, are not entitled to vacation pay, but must have their vacations rescheduled. This is so, despite the fact that employees on leave might be inconvenienced by this arrangement and hence would also prefer a lump sum payment as against "time off." It is quite obvious therefore that the contractual "time off" requirement has the same impact on persons absent from work at the time of their preordained vacation, whether said absences be related to protected activity or any other reason. Against this background, to brand Respondent's action as unlawful is to assume that employees engaged in union activity are to be accorded more favorable treatment than others similarly situated, a notion which to my thinking constitutes discrimination, which on its face, 6 Cf. Cavalier Division of Seeburg Corporation supra, where the Board, in finding an 8(a)(3) violation based on the employer's denial of accrued vacation pay to strikers, was careful to point out that the applicable contract accorded employees the option of taking pay in lieu of time off. ,7 Although the General Counsel takes issue with Respondent's claim that the rescheduling of vacation was required by the contract, he does so on grounds that this action was not specifically authorized by the contract. In finding no merit in i the General Counsel's position, I note that such authorization is implicit in the overall scheme evidenced by the various vacation provisions. S Roegelein Provision Company, 181 NLRB 578. In that case, a Board majority dismissed an 8(a)(3) allegation where an employer, pursuant to a recently negotiated cgntract, denied vacations to certain participants in the strike which lead to execution of that agreement. The employer's action was pursuant to a provision precluding vacations to employees "absent from work for any reason for as many as two hundred (200) hours during the twelve (12) months immediately preceding the taking of his vacation ... . After the strike, vacation benefits were denied to certain strikers solely because the employer counted strike time as a disqualifying. absence for purposes of the "200 hour" limitation. The Board reversed the Trial Examiner, who had -found this to be unlawful discrimination under Section 8(a)(3), and dismissedithe complaint. In my judgment, the result in that case was absolutely consistent with the standards laid down in N.LR.B. v. Great Dane Trailers, supra, and the body of precedent cited therein. encourages union membership and hence is precisely the type of arrangement that Section 8(a)(3) seeks to con- demn.9 Aside from the foregoing, close examination of the General Counsel's position in the light of the impact of this complaint on the entire group of strike supporters, discloses that the General Counsel through this complaint, seeks to establish a classification of beneficiaries which rests on arbitrary considerations unrelated to Section 7 of the Act. All who honored the picket line were subject to the requirement that vacation benefits be in the form of time off only. However, this complaint alleges wrongful discrim- ination against only those whose vacations fell during the strike. Nonetheless, it is a fact that unit employees who declined to cross the picket ,line, but whose vacations were not scheduled for August, September, or October 1972,-had no right to claim vacation pay in lieu of time off. Perhaps this group, by reason of low seniority preference or a change in plans or whatever, would also find value in the option claimed to have been unlawfully denied here. But, as this complaint implicitly concedes, by no stretch of the imagination could Section 8(a)(3) be extended to accord this-latter group such a "right." Yet, the only distinction between those who honored the picket line, and are the objects of alleged discrimination under this complaint and those who were also engaged in such activity but are not covered by this complaint, is the fortuity of when their scheduled vacations happened to fall. Otherwise both categories were similarly situated; for, they both received time off with pay during the vacation year 1972, the primary impact of the contractual policy fell equally on both groups,10 and both groups refused to cross the picket line. Thus, to find that the contractual vacation policy involved here was unlawfully applied would provide the alleged discriminatees a benefit not available to their brothers who also honored the picket line, but whose vacations fell, outside the strike period. Such a result is anomolous; for, to provide selective relief on the basis of such a dichotomy,, would not in any sense rest upon a need or a desire to protect the Section 7 rights of employees; it can hardly be said that a contractual policy which falls 9 Cf N.L.R.B_ V. Great Dane Trailers, Inc, supra, p. 32. "The act of paying annual benefits to one group of employees while announcing the extinction of the same benefits,for another group of employees who are distinguishable only by their participation in protected concerted activity may have a discouraging effect on either present or future concerted activity " io At this juncture, I would note that the General Counsel urged that, in the event a violation is found, backpay would be justified in an amount equal to the wage entitlement for each week that an alleged discriminatee was eligible for vacation. It is argued that this remedy imposes no penalty and is necessary because each discriminatee , by virtue of Respondent's conduct, lost earnings for the weeks they were required to take off. Were I to find a violation I would deny such relief. In my opinion it would unduly penalize the Respondent and unjustly enrich the alleged discrimmatees, all of whom have had their vacations in the form of time off with pay The windfall that would result from imposition of such a remedy is graphically -illustrated by the fact that a like loss of earnings was accrued by those strike supporters whose vacation fell outside the period of the strike. However, no claim of discrimination or back wages is trade in their behalf nor would any such claim be tenable. In these circumstances, to grant such relief to the alleged discriminatees, would give them monetary award over and above the vacation benefit, which they and other strike supporters have already received. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equally upon all engaged in the same protected activity constitutes inherently discriminatory action as to a segment of that group where, as here, the distinction as between those who are and those who are not victims of the alleged discrimination rests upon considerations wholly extraneous to the safeguards of Section 7 and 8 of the Act. For these reasons, I find that no discrimination resulted from Respondent's failure to provide a special vacation pay benefit to certain of the production and maintenance workers who honored the picket line in August, September, and October 1972. The implementation by Respondent of the vacation policy against lump sum vacation payments placed the alleged discriminatees on parity with those adversely affected because absent for other reasons, and indeed with others who honored the picket line, but who could not make legitimate claim for the type benefit sought here. Further, there is no independent evidence of antiunion motivation, nor a basis for drawing an inference that the Respondent's action was in the interest of discouraging union membership. In my opinion, I am here confronted with an even stronger case in support of an employer's right to avail himself of benefits acquired through the collective-bargaining process then was present- ed in Roegelein Provision, supra, a decision that I regard as dispositive herein. Accordingly, I shall recommend that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. G.C. Murphy Company is, and has been at all times material herein, an employer within the meaning of Section 2(3) of the Act and engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, General Teamsters, Chauffeurs and Helpers Local 249 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. 3. As found above, Respondent has not violated Section 8(a)(3) and 8(a)(1) of the Act by withholding and refusing to pay accrued vacation benefits to employees. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" The complaint is hereby dismissed in its entirety. 1' 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. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. APPENDIX ARTICLE XI Sufficient methods having been established to settle any grievance or dispute that may apse , in an amicable manner, therefore, there shall be no strikes, or slowdowns by the employees nor any lockouts of the employees by the Employer during the period covered by this Agreement. ARTICLE IV (a) The Union agrees to further and promote the best interests of the Employer at all times. (b) The Union agrees to make every effort to see that employees who are in the Employer's employment obey all rules and regulations negotiated by the Employer and Local Union 249. A copy of said rules marked Exhibit `B" is attached hereto and made a part hereof. (c) It shall not be deemed a breach of contract to refuse to work on or from any premises where a strike exists, and no employee can be disciplined for such action. Vacations (a) Earned vacations with pay will be granted to all regular employees covered by this Agreement in accord- ance with their length of continuous service with the Employer. For the purposes of determining earned vacation periods of layoff during which seniority rights are not forfeited and authorized leaves of absences as hereinafter defined in this Agreement under Leaves of Absence from which the employee is reinstated without loss of seniority shall be considered as continuous service with the Employer, but such period of layoffs or leaves of absence shall not be considered service with the Employer for purposes of determining earned vacation to which an employee may be entitled. (b) On or after November I of each calendar year, each employee entitled to take vacation time off in the following year, will be requested to specify in writing (not later than two (2) days after the receipt of such request on a form provided by the Employer) the vacation periods he or she desires. Employees to select their vacation in order of their seniority and upon completion of the requests, vacations will be scheduled during the next calendar year, provided, however, fifty (50) regular employees will be scheduled during each week in the months of June, July and August and further, provided that if fifty (50) regular employees do not request vacation during said weeks additional regular employees will be scheduled by the Employer by inverse seniority to complete the fifty (50) regular employees. In each of the remaining weeks in the calendar year up to twenty-five (25) regular employees will be scheduled based on their seniority. (c) It is the intent of this ARTICLE that it be compulsory for eligible employees to take time off for their vacation period and further that no employee shall be permitted to change their scheduled vacation period or any part thereof, provided, however, an employee shall resche- dule their vacation only if his or her scheduled vacation falls during an Approved or Authorized Leave of Absence, except that such rescheduling will not affect vacations scheduled pursuant to (b) of this ARTICLE and further provided, that the employee must return to work for a G. C. MURPHY CO. 585 period of two (2) weeks before taking a rescheduled vacation. (d) Vacation period of less than one (1) week shall not be scheduled, provided, however, an employee may split one week of his or her vacation within his or her scheduled vacation period by requesting the Warehouse Personnel Department to schedule in accordance with paragraph (b) of this ARTICLE one, two, three or four days of vacation provided further that such scheduling of split vacation upon request to the Warehouse Personnel Department can be altered only for personal illness and such other situations which may be properly judged as emergencies. No employee shall be permitted to take vacation time as a credit against time lost for any other reason. (e) Unused vacation time cannot be carried over into the next year and an employee shall not be paid in lieu of vacation. (f) An employee shall become eligible for vacation in accordance with the following schedule, provided, he or she had been employed continuously six (6) months or more. Employees who started to work prior to November I of any year vacation is earned as of May 1 of the next year. Employees who started to work between November 1 and February 1 of any year, vacation is earned as of August 1 of that year and must be scheduled after August 1 of that year. The eligible employees who have attained the years of continuous service indicated in the following table in any calendar year during the continuation of this Agreement shall receive a vacation corresponding to such years of continuous service as shown in the following table: Employed continuously six (6) months but less than one (1) year-1 week with pay Employed continuously one (1) year but less than five (5) years-2 weeks with pay Employed continuously five (5) years but less than fifteen (15) years-3 weeks with pay Employed continuously fifteen (15) years but less than twenty-five (25) years-4 weeks with pay Employed continuously twenty-five (25) years or more-5 weeks with pay (g) Vacation pay shall be determined on the basis of a forty (40) hour week at the employee's highest hourly rate earned (but excluding shift differential and overtime premium) for twenty (20) hours or more worked during the week prior to vacation. (h) Should a holiday occur during a vacation week, the employee or employees will be entitled to an extra day of vacation to be mutually agreed upon by the employee and the Employer during the calendar year. (i) Eligible employees resigning before their vacation is earned are not entitled to vacation pay. Eligible employees resigning after their vacation is earned will be entitled to full vacation pay, provided, however, that a two (2) weeks notice is worked out. Eligible employees dismissed other than for cause will receive pay in lieu of earned vacation, provided, however, that said vacation was earned at time of dismissal. Leaves of Absence All leaves of absence shall fall within one of the following classifications as determined by the reason for the leave: Approved Leave of Absence: This type of leave can be granted only on the basis of personal illness (except pregnancy) or disability of the employee. While on an Approved Leave, the employee's continuous service record will be maintained and credit granted for the time absent just the same as though at work. However, no employee may receive insurance increments , vacation pay, or other benefits except sick relief or workmen's compensa- tion while on a leave of absence. The increments will be received following the employee's return to work according to the policy covering each one. Authorized Leave of Absence: This type of leave includes all leaves of absence granted for other than personal illness of the employee or military service. While on an Authorized Leave, the employee's contmu- ous service record will not be broken for three months but no credit will be allowed for the time thus lost exceeding the three month leave. Upon returning from an Authorized Leave of Absence, the employee's service record will be resumed from the point at which it stood when the leave began plus the aforementioned three month period.