A-V Corp.

A-V CORPORATION A-V Corporation and Local No. 666 of the Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada and Local No. 780 of the International Alliance of Theatrical Stage Employ- ees and Moving Picture Machine Operators of the United States and Canada. Case 23-CA-4598 March 7, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PFNELLO On September 20, 1973, Administrative Law Judge Sidney Sherman issued the attached Decision in this proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint . Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. 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 briefs and finds that Respondent did not violate Section 8(a)(5) and (1) of the Act as alleged and that the complaint should therefore be dismissed. The Board has accordingly decided to affirm the rulings,' findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The facts herein, as found by the Administrative Law Judge and supplemented by the record, are not in substantial dispute. Respondent, a Texas corpora- tion, is engaged in processing film and producing motion pictures . Respondent maintains its principal office in downtown Houston, Texas, which primarily serves its commercial clients, and also maintains an office at the site of the National Aeronautics and Space Administration center (hereinafter called NASA) in Seabrook, Texas, where it performs work for that Federal agency pursuant to cost-plus contracts . Respondent and Locals 666 and 780 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada2 (hereinafter called the Union) have had contractual relations since January i The General Counsel has excepted, inter a/a, to the Administrative Law Judge's ruling denying his motion made at the hearing to amend the complaint to allege that the strike by Respondent's employees commencing on April 20, 1973, was an unfair labor practice strike. At the hearing, the Administratise Law Judge denied the motion on the grounds that to permit the amendment would inject a new and complex issue into this proceeding which would necessitate a postponement to allow Respondent time to prepare a defense, and that the issue could best be resolved in any potential subsequent proceeding which might apse upon charges alleging that 451 1967. The parties' most recent collective-bargaining agreement expired on June 30, 1972. On April 24, 1972, the Union, through its counsel, invoked the termination clause of the parties' last contract and requested that negotiations for a new agreement commence. Between the expiration of the last contract and the hearing date, the parties held six bargaining sessions.3 However, no new agreement was reached. The Administrative Law Judge found that Respondent unlawfully made unilateral changes during the course of the negotiations, as will be more fully discussed below. 1. The Administrative Law Judge found that Respondent violated Section 8(a)(5) and (1) of the Act by allocating to its employees increased costs in insurance premiums in July 1972. The Administra- tive Law Judge reasoned that Respondent's absorp- tion of the entire costs of such increases in February 1971 superseded its previous practice of 1967 and 1968, thereby establishing a new term or condition of employment. We disagree. Prior to January 1, 1967, the effective date of the parties' initial contract, Respondent's employees participated in a group insurance program in which they contributed approximately 50 percent of the costs of premiums, the balance being paid by Respondent. However, the initial contract between the parties modified this practice through the following, provision : The Company shall maintain all of its present group insurance programs without change for employees and dependents. The present cost to the employee for all coverage shall be reduced by one-half (1/2) effective January 1, 1967, and shall not be increased. This provision was included without change in the parties' subsequent contract which became effective on July 1, 1969, and which was extended by the parties through June 30, 1972. Pursuant to the above provision, the cost of premiums for the individual employee was reduced by one-half, effective January 1, 1967, to approxi- mately 25 percent of the total cost of premiums. Upon the renewal of the group policy in February 1967, Respondent allocated to its employees on a 25- percent pro rata share basis the increases in the costs of premiums declared by the insurance carrier. Respondent unlawfully failed to reinstate the strikers. In his Decision, at fn 11, the Administrative Law Judge elaborates upon his reasons for so ruling We do not agree with the Administrative Law Judge's analysis of the Board's policy and his ruling with respect to this issue . In view of our decision herein, however, we find that no prejudicial error was committed. 2 Local 666 and Local 780 constitute a joint representative of Respondent's employees 3 The parties met for bargaining purposes on August 30, September 13, and December 20, 1972, and on March 26 and 27 and May 15. 1973 209 NLRB No. 58 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, upon the subsequent renewal of the policy in February 1968, Respondent again passed on increased premium costs to its employees, maintaining the same percentage of contributions. There were no such increases in 1969 or 1970. In early January 1971, Respondent was notified by its insurance carrier that the latter would substantial- ly increase the costs of premiums upon the renewal date of the policy on February 1, 1971. As a consequence, Respondent, through its insurance agent, acquired an identical program underwritten by a new carrier with premium rates greater than its former policy but less than those which would have been charged for renewal of the latter. By letter dated February 4, 1971, Respondent informed its employees of the change in insurance carriers, notified them that new application forms would soon be distributed, and stated that there would be no increase in the costs of premiums to the employees. As a result of Respondent's absorbing the additional premium costs, the employees' pro rata share of contributions was reduced from approximately 25 to 21 percent. Thereafter, upon the first renewal of this new policy in July 1972, Respondent allocated to its employees increased premium costs on a pro rata share basis of approximately 21 percent. Subsequent- ly, when these increases were first reflected in the employees' paychecks on July 16, 1972, the union steward, Gerald Bray, contacted Respondent's pro- ject manager, William Robbins, and protested this action, contending that it was inconsistent with the parties' contract and that Respondent was obligated to absorb any increased premium costs. The record further discloses that throughout the period of contractual relations between the parties, Respondent allocated to its individual employees on a pro rata share basis increased costs for additional amounts of insurance coverage which automatically accompanied salary increments pursuant to a salary continuation plan. At no time during this 5-year period did the Union or any of the employees protest this practice. It is clear from the foregoing that throughout the period of contractual relations between the parties, with the sole exception of Respondent's action in February 1971, Respondent's consistent practice with regard to increased insurance premium costs, whether occasioned by increasing costs or increasing amounts of insurance coverage, had been to allocate a portion of such costs to its employees on a pro rata share basis. Indeed, whatever may have been the intention of the parties in adopting the pertinent contractual language, a mere 1 month after the effective date of the initial contract Respondent allocated the increased premium costs on such a basis. Despite this practice over a 5-year span, the Union interposed no objection at any time and made no attempt to assert that Respondent's interpretation of the contract was erroneous. With regard to Respondent's departure from this practice in February 1971, to hold, as did the Administrative Law Judge, that this sole exception in an otherwise consistent practice over a considerable number of years establishes a new condition of employment would unwarrantedly attribute no weight to either the length of the past practice or to the Union's apparent concurrence, or at least acquiescence, in it over the years. This we are not prepared to do, absent some evidence that the 1971 absorption was intended then to be the practice thereafter. There is no such evidence here. In these circumstances, we conclude that Respondent's allo- cation of insurance premium costs in July 1972 merely represents a continuation of its past practice rather than an unlawful unilateral change in condi- tions of employment and, accordingly, does not constitute a violation of the Act.4 2. The Administrative Law Judge further found that Respondent violated the Act by granting paid holidays on Columbus Day 1972 and on December 28, 1972, to its Seabrook employees without confer- ring similar benefits upon its downtown Houston employees. For the reasons set forth below, we disagree. The parties' second contract contained the follow- ing provision with respect to the observance of paid holidays: The following holidays shall be observed: New Year's Day, Washington's Birthday, Memorial Day, Fourth of July, Labor Day, Veteran's Day, Thanksgiving Day and Christmas Day. In the event N.A.S.A. declares and observes as a legal holiday one in addition to those set forth above, such holiday shall also be observed under this Agreement. Pursuant to this provision, all employees of Respondent were granted a paid holiday on Colum- bus Day 1971, which had been declared a legal holiday by the United States Government and was observed by NASA. During the negotiations for a new contract, however, Respondent sought the elimination of all NASA-type holidays, inasmuch as its business had radically changed during 1971-72 from primarily servicing NASA to primarily servic- ing commercial clients. For this reason, in its first proposed contract, submitted to the Union several 4 Cf J P Stevens & Co. Inc, 183 NLRB 25, American Or/ Company, 152 NLRB 56, 57, Instrument Division, Rockwell Register Corporation, 142 NLRB 634,642 AN CORPORATION days prior to the negotiations session scheduled for September 13, 1972, Respondent proposed a new holiday provision which designated certain holidays, not including Columbus Day, and which made no reference to additional legal holidays observed by NASA. The Union did not raise this issue at the September 13 session and this particular matter was not discussed by the parties at that time. Subsequent- ly, on October 4, 1972, only 5 days prior to Columbus Day, the Union's business agent, Arthur Beeman, wrote Respondent, inquiring whether the latter intended to observe Columbus Day as a legal holiday and seeking Respondent's reaction to the Union's position that a paid holiday should be observed. At approximately the same time, NASA notified Respondent that it would observe Columbus Day as a legal holiday and informed the latter that it would reimburse its contractors for holiday pay granted to their employees performing work under NASA contracts. That afternoon Project Manager Robbins discussed Respondent's intention to grant a paid holiday only to the Seabrook employees with Union Steward Bray. Bray responded that he understood Respondent's position, but that he would have to refer this matter to union headquarters in Chicago, Illinois. In the interim, by letter dated October 9, 1972, Respondent informed Business Agent Beeman that it had discussed the Columbus Day issue with Bray and that the latter had understood and concurred in Respondent's position. The Union made no immediate response to this letter. Thereafter, on November 9, 1972, the Union wrote Respondent, rejecting Respondent's first pro- posed contract in its entirety without specific reference to the holiday provision or any other provision. This matter was not raised by the Union in the subsequent bargaining session held on December 20, 1972, and, according to the undisputed testimony of Bray, this particular issue was never discussed at any of the six negotiation sessions. The second day in dispute arose because, upon the death of former President Truman, a national day of mourning was declared for December 28, 1972, by President Nixon. During the afternoon of December 27, Respondent was notified through a NASA memorandum that that agency would close and would be granting leave on the following day for its own employees, and that it would compensate Respondent for granting a paid day off to the latter's Seabrook employees. The memorandum clearly emphasized that this day would not be considered a holiday for pay purposes. Later that afternoon, 5 369 U.S 736 (1962) 6 Ibid at 747-748 See also Westinghouse Lleciric Corp, Bettis Atomic Power Laboratory, 153 NLRB 443, 446, and the cases cited therein 7 See, c g., New York Mirror, Division of the Hearst Corporation, 151 453 Robbins contacted Union Steward Bray, informed him of NASA's action, and stated Respondent's intention to grant only its employees performing work under NASA contracts a paid day off for the following day. Bray, who was assigned to the Seabrook facility, responded that he was surprised as he had not expected a day off. The record clearly shows that Bray did not object to Respondent's contemplated action, that the Union did not subse- quently do so, and that this matter was never discussed at the bargaining table. In reaching his conclusion that Respondent violat- ed Section 8(a)(5) and (1) by its conduct with respect to Columbus Day, the Administrative Law Judge found that "the Union had no meaningful opportuni- ty to be heard on the issue ...." and deemed controlling the principle that, absent impasse, an employer may not unilaterally effectuate proposals that are subjects of current negotiations. Respon- dent, however, contends that there is no such broad rule of law and that the Union, having had sufficient advance notice of Respondent's proposed elimina- tion of NASA-type holidays and having failed to raise the issue at the bargaining table, may not now successfully claim that Respondent's conduct in this regard was unlawful. We agree with the Administrative Law Judge that generally, absent impasse, an employer may not unilaterally implement its proposals which are under discussion. This rule is not, however, absolute. Thus, as noted by the Supreme Court in N. L. N.L.R.B. v. Benne Katz et al., d/b/a Williamsburg Steel Products Co.,5 a case involving unilateral employer action during negotiations without prior notice to the union, "there might be circumstances which the Board could or should accept as excusing or justifying unilateral action." r- In this regard, the Board has in the past found such justification by reason of necessity? and by waiver or acquiescence of the union.8 In the circumstances of this particular case, we conclude that such justification existed. Thus, as noted above, the Union was first informed of Respondent's contemplated elimination of the Columbus Day holiday several days prior to the September 13 negotiation session. Despite the fact that Columbus Day was only 4 weeks distant, the Union neither raised the issue at the September 13 session nor expressed any objection to Respondent's proposal. In fact, the Union took no action whatso- ever with respect to this issue until a mere 5 days prior to the holiday, when its business agent wrote Respondent inquiring whether the latter intended to NLRB 834, 841. F US Lingerie Corporation, 170 NLRB 750, 752; Murphy Diesel Company, 179 NLRB 149 . at in. 1: Justesen's Food Stores, Inc,Justesen's Rosedale, Inc, and R J. Agerton, 160 NLRB 687.693-694. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD observe the holiday. Soon thereafter, when Respon- dent was first officially notified by NASA of the latter's action, Project Manager Robbins promptly contacted Bray who stated that he would have to refer the matter to union headquarters. Despite the imminence of the holiday, and although the Union was notified of Respondent's action by Bray and by Respondent's letter of October 9, 1972, the Union filed no protest until some 2 months after the holiday when its counsel wrote Respondent demanding that the Columbus Day holiday be included in any new agreement. It is thus clear that the Union was afforded both notice of Respondent's contemplated change in the observance of the Columbus Day holiday and the opportunity either to object or to raise the issue at the September 13 bargaining session or during the period immediately prior to the holiday .9 In the circumstances here, particularly the prior notice to the Union and the imminence of the holiday, we believe that it was incumbent upon the Union to exercise its right to demand discussion over the issue and, having failed to do so, may not now effectively claim that Respondent's action was unlawful.10 For similar reasons we disagree with the Adminis- trative Law Judge's finding of a violation with respect to Respondent's unilateral grant of a day off with pay to its Seabrook employees only in observ- ance of a national day of mourning on December 28, 1972. In reaching his conclusion, the Administrative Law Judge specifically found violative the failure of Respondent to attempt to obtain an expression of the Union's views in its discussion with Bray or from union headquarters. As noted above, however, Respondent had limited advance notice from NASA as to the latter's observance of a national day of mourning, having been so informed during the late afternoon of December 27, 1972. Furthermore, the NASA memo- randum sent to Respondent clearly indicated that the national day of mourning was not to be considered a holiday for pay purposes. Consequently, Respondent was confronted with a matter which had no preced- ent in past practice and no basis in the expired contract, which referred only to "additional legal holidays declared by NASA." In view of the need for an immediate decision, Respondent promptly con- tacted Bray who, upon being informed of Respon- dent's intention to grant a paid day off to the Seabrook employees only, did not object but rather expressed his surprise at having the following day off. In view of the special circumstances here, including the limited notice given by NASA, the unexpected occurrence of a national day of mourning, the prompt manner in which Respondent contacted Bray, and the latter's apparent acquiescence in Respondent's action,' we conclude that Respondent discharged its responsibilities under the Act. 3. Finally, we find merit in the Respondent's exceptions to the Administrative Law Judge's con- clusion that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally terminating its contributions to the Local' 666 pension fund. The expired contract included a provision relating to pension benefits which reads in pertinent part: The Company shall contribute the amounts shown below for pensions to the particular Union representing the employees for any portion of a week worked by an employee: For employees represented by Local 666-$15.00 effective July 1, 1969 For employees represented by Local 780-$8 .00 effective April 1, 1970, and an additional $2.00 effective March 1, 1971 The amounts contributed shall be jointly adminis- tered in a fund by the particular local union and the employers in the Chicago, Illinois area. The pension fund and plan shall be approved by the Internal Revenue Service and shall meet all requirements of federal law. Payment to these funds, however, shall not await the approval of the Internal Revenue Service, but shall be forwarded to the pension fund office and the amount held in escrow ... . Upon approval by Internal Revenue Service, the Company shall be furnished with a copy of the Trust and Plan. As the language of the above provision reflects, the parties anticipated that the Union would obtain approval for its pension plans from the Internal Revenue Service. The record discloses, however, that only the Local 666 pension fund had been formulat- ed by the Union and approved by the Internal Revenue Service and that, for some considerable time prior to the events herein, Respondent had 9 See Chatham Manufacturing Company; 172 NLRB 1948, 1949. Gordon and Palmer Gordon, partners d/b/a Lakeland Cement Company, 130 10 Cf. Hartmann Luggage Company, 173 NLRB 1254, 1255-56; Motore- NLRB 1365,1374-75. search Company and Kems Corporation, 138 NLRB 1490, 1492-93, Shelly A-V CORPORATION ceased making payments to the projected Local 780 "fund." 11 Consequently, in its first proposed contract submit- ted to the Union prior to the September 13 bargaining session, Respondent included an offer to substitute for the Union's pension plans a company- wide retirement plan to be underwritten by a private insurance carrier with the entire cost to be borne by Respondent. This proposal, however, appears to have been only partially discussed at the September 13 session and apparently was not discussed at all during the following session on December 20. At the conclusion of the latter meeting, Respondent submit- ted to the Union a detailed description of its proposed retirement plan, together with its second proposed contract, which included a provision for the new plan. Subsequently, by letter dated January 5, 1973, Respondent advised the Union that it was contemplating the termination of its payments to the Local 666 fund and the implementation of its proposed plan so that all of its employees could enjoy pension benefits. Respondent also specifically expressed its desire to meet with the Union to discuss the matter. Thereafter, by letters dated January 22 and March 1, 1973, Respondent again notified the Union of its intention to terminate its Local 666 pension payments. The Union, however, did not respond to these letters and it appears that it did not raise the issue at the ensuing negotiation sessions held on March 26 and 27, 1973. Subsequently, on May 8, 1973, Respondent advised the Union that it would soon terminate its payments to the Local 666 fund and, on May 15, 1973, Respondent remitted to the Union its final payments for that fund. Finally, at the negotiation session held on May 15, 1973, the parties for the first time engaged in meaningful discussion of the pension issue across the bargaining table. The Administrative Law Judge, in finding Respon- dent's conduct violative of the Act, relied upon the same rule of law as he had with respect to his treatment of the Columbus Day issue, i.e., absent impasse, an employer may not unilaterally effectuate its proposals which are subjects of current bargain- ing. Our discussion of that general principle in dealing with the holiday issues, above, is fully applicable to the instant matter. As there noted, this rule is not absolute, but rather is subject to certain 11 The record does not disclose whether the Union immediately protested Respondent's cessation of payments to the Local 780 fund. It is clear, however, that the Union subsequently filed a charge alleging a violation of Sec 8(a)(5) based thereon which was dismissed as untimely under Sec 10(b) of the Act 11 It is well established that the conditioning of benefits solely upon membership in a particular labor organization constitutes unlawful discrimination under the Act. Meyers Bros of Missouri, Inc, 151 NLRB 889, 890, Stratford-at-Babylon, Inc., 132 NLRB 803, 816-817; Northeast Coastal, Inc, 124 NLRB 441, 449. 455 exceptions such as necessity and waiver. On the basis of the fact disclosed herein, we do not agree with the Administrative Law Judge's conclusion that Respon- dent violated the Act by terminating its contributions to the Local 666 pension fund, as we find that Respondent satisfied its obligations under the Act. As noted above, the expired contract provided for Respondent's contribution to the separate pension funds of Locals 666 and 780, respectively . It is clear, however, that the Local 780 fund was never formu- lated or effectuated by the Union and that Respon- dent, therefore, had ceased making payments to this "fund." Thus, in the actual operation of the Union's pension plan, only the Local 666 members of the unit accrued any pension benefits, thereby resulting in unlawful discrimination against the Local 780 mem- bers.12 We cannot conclude that Respondent was under any obligation to continue making contrib- utions to a fund, patently discriminatory in practice. Furthermore, we conclude that Respondent's action did not violate the Act as the Union was afforded adequate notice of the intent to terminate the pension program and an opportunity to discuss the matter, but failed to respond or to request any such discussion. Thus, Respondent had included a provision for its companywide retirement plan in its first proposed contract in early September 1972. Thereafter, following its submission to the Union of the details of the plan on December 20, 1972, Respondent repeatedly advised the Union that it would not continue making the Local 666 pension payments indefinitely. We find particularly signifi- cant the fact that Respondent, in its letter to the Union dated January 5, 1973, clearly stated that its proposed plan was not offered on a take-it-or-leave-it basis and indicated its desire to meet with the Union to discuss the matter.i3 Subsequently, Respondent ceased making its contributions to the fund but did not in fact implement its own proposal, thereby leaving open for future negotiations any substitution for the Union's pension plan. Nevertheless, the Union neither expressed a desire to pursue signifi- cant discussion of the issue nor objected to Respon- dent's intended action until some 7 months after Respondent's initial proposal. The Union cannot, by failure to act, prevent change indefinitely, even during the hiatus period between contracts. We find, in view of Respondent's clear notice of its intended There is no contention that the pension provision contained in the expired contract was in itself unlawful and, for the purposes of our decision herein, we assume that this clause was in fact valid. 13 Contrary to the Administrative Law Judge's finding as set forth at in. 10 of his Decision, we conclude that the series of letters sent by Respondent to the Union during this period . especially those from January 5 and thereafter, clearly reflect the particular importance Respondent attributed to the pension issue and its desire to resolve this immediately and apart from other matters 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action with regard to such a vital union interest as pension benefits and the Union's failure to respond thereto, that the termination of the Local 666 pension contributions was not violative of Section 8(a)(5) of the Act.14 For all the foregoing reasons, we conclude that the record as a whole does not establish that Respon- dent's conduct herein constituted a refusal to bargain in violation of Section 8(a)(5) and (1) as alleged in the complaint. Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting in part: Concerning the Columbus Day holiday (October 9, 1972), Respondent proposed to eliminate it from the contract as a paid holiday in its initial contract proposal submitted a few days before the first bargaining session on September 13, 1972. The matter was not discussed, or mentioned by either side, at that bargaining session. Five days prior to the holiday, the Union inquired of Respondent whether it intended to observe Columbus Day as a paid holiday. No bargaining occurred, but on Columbus Day Respondent wrote a letter to the Union which stated that the Union had already been informed that Respondent would not treat the day as a paid holiday except for the Seabrook employees. From these circumstances, it is clear that the matter had never been bargained about, that it had been placed on the table by the Employer, that both sides had had a chance to bring it into the discussions, and that there had been no bargaining about the issue. To say, as does the majority, that one party may make a proposal and then unilaterally put it into effect a month later over what is plainly the other side's objection and in the absence of any bargaining about the subject is contrary to the existing law on the matter. It has been long established that unilateral actions which result in changes in the terms and conditions of employment of employees are violations of an employer's statuto- 14 Cf Holiday Inn Central, 181 NLRB 997 , Murphy Diesel Company, supra, Durfee's Television Cable Company, 174 NLRB 611, 614, Justesen's Food Stores, Inc, supra 15 N L R B v Katz, 369 U S 736 (1962), The Kroger Company v N L R B, 401 F 2d 682 (C A 6, 1968) See also Royal Himmel Distilling Company, 203 NLRB No 62, fn 3, where the Board stated that "it is well established that an employer can only make unilateral changes in working conditions consistent with its rejected offer to a union after bargaining has reached an impasse ry bargaining obligation.15 To permit this type of conduct is inimical to the fostering and protection of bargaining which is the purpose of the statute. For these reasons, I would affirm the Administrative Law Judge's finding that Respondent violated the Act by eliminating the previously paid holiday of Columbus Day in 1972. DECISION SIDNEY SHERMAN, Administrative Law Judge: The original charge herein was served on November 29, 1972,1 the complaint issued on March 28, 1973, and the case was heard on May 30 and 31, 1973. The issues litigated related to alleged violations of Section 8(a)(5) and (1) through unilateral changes in terms of employment. After the heating briefs were filed by all parties.2 Upon the entire record,3 the following findings and recommendations are made: 1. RESPONDENT'S BUSINESS A-V Corporation, herein called Respondent, is a corpo- ration under Texas law , with a principal office at Houston, Texas, where it is engaged in processing film and producing motion pictures . Respondent annually purchas- es goods valued at more than $50,000 from out-of-state suppliers . Respondent is engaged in commerce under the Act. II. THE UNIONS Local No. 666 and Local No. 780 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, hereinafter sometimes collectively referred to as the Union, are labor organizations under the Act. Ill. THE MERITS The pleadings, as amended at the hearing, raise the following issues: Whether Respondent violated Section 8(a)(5) and (1) of the Act by: (a) Unilaterally increasing the amount of insurance premiums payable by its employees and refusing to entertain any grievance concerning such action. (b) Unilaterally depriving certain of its unit employees of a paid holiday on Columbus Day in 1972. (c) Unilaterally granting a paid holiday on December 28, 1972, to certain of its unit employees but not to others. (d) Unilaterally terminating contributions to an employ- ee pension plan. A Sequence of Events The parties have had contractual relations since January 1, 1967, their last contract having expired on June 30, 1972. I All dates hereinafter refer to events in 1972, unless otherwise indicated. 2 There was also filed a posthearing stipulation which was received in evidence See the order of August 31, 1973 3 For corrections of the transcript , see the order of August 31, 1973 A-V CORPORATION Since August 30, negotiations for a new contract have been under way4 but no agreement had been reached as of the date of the instant hearing. Before January 1, 1967, the employees were covered by a group insurance plan, to which they contributed through payroll deductions approximately half of the premiums, the balance being paid by Respondent. The initial contract between the parties, which took effect on January 1, 1967, provided as follows with respect to this item: The Company shall maintain all of its present group insurance programs without change for employees and dependents. The present cost to the employee for all coverage shall be reduced by one-half (1/2) effective January 1, 1967, and shall not be increased. [Emphasis supplied.] As a result of this, the employees' pro rata share of the premiums was reduced from about 50 percent to about 25 percent. However, Respondent was not consistent in its treatment of increases in premium rates. Two such increases-in February of 1967 and 1968 -were passed on to the employees on a pro rata basis, but in February 1971, the entire amount of a third increase was absorbed by Respondent. However, early in July 1972, soon after the expiration of the parties' last contract, a new increase in rates was again passed on by Respondent to the employees on a pro rata basis. This action, like all the others described above, was admittedly taken without consulting the Union. The employees in the bargaining unit are divided between two locations in Houston-one at the site of NASA's operations. and the other in downtown Houston. The former group, referred to in the record as the "Seabrook" employees, services for the most part the activities of NASA under cost-plus contracts, whereas the latter group, referred to in the record as the "North Boulevard" or "downtown" employees, is engaged princi- pally in work for private firms. Respondent's last contract contained a provision for paid holidays, and pursuant thereto, in 1971, all the unit employees were granted a day off with pay on Columbus Day. However, in 1972, while continuing to treat Columbus Day as a paid holiday for its Seabrook employees, Respondent refused to do so for its downtown employees. Also, when December 28 was declared a day of mourning for President Truman, Respondent granted its Seabrook, but not its downtown, employees time off with pay. In May 1973, Respondent discontinued the contri- butions it had been making to an employee pension fund. 4 The dates of the bargaining sessions in 1972 were August 30, September 13. and December 20, and in 1973, the parties met on March 26 and 27 and May 15 5 This is because the face amount of an employee's life insurance and salary continuation coverage is automatically increased as his earnings rise Any resulting rise in gross premiums has been passed on to the employees on a pro rata basis. 6 In its brief, Respondent contends that it was precluded from raising rates in June or July 1971 (when it had all the necessary rate information) because in February it had announced to the employees that it would absorb the entire amount of any increase in insurance costs resulting from the new rates and that there would be no change in the level of the B. Discussion 457 1. The Union's representative status Respondent conceded at the hearing that at all times here material the Union has been the statutory representa- tive of the employees in the following appropriate unit: All of Respondent's employees, including animation cameramen, but excluding office clerical employees, executives, professional employees, animation depart- ment employees, guards, watchmen and supervisors as defined in the Act. It is so found. 2. The increase in insurance cost The General Counsel contends that Respondent's action in July 1972, in requiring the employees to absorb part of the increase in premium rates, represented a unilateral change in the existing terms of employment. Respondent disputes that there was any change. The General Counsel relies on the language of the expired contract quoted above and Respondent' s action in February 1971, when it absorbed the entire rise in rates, as establishing that in July 1972 the existing terms of employment were such that Respondent was required to absorb the entire amount of any increase in rates. Respondent, on the other hand, contends that the contract should be construed in the light of Respondent' s actions in February 1967 and 1968, when it passed on to the employees on a pro rata basis increases in rates and in light of the fact that employee contributions to insurance premiums have risen in many instances throughout the past 5 years for reasons unrelated to higher premium rates.5 As for the action of February 1971, Respondent explains that at that time it knew only that there would be an increase in rates but did not know just how it would be broken down among the various coverages and that, pending receipt of that information, it was not feasible to pass on any part of the increase to the employees. However, a few months later Respondent admittedly received all the necessary information as to the new rates, so that it would have been feasible to pass on the increase at that time, but it failed to do so, and at the hearing no persuasive explanation for such failure was offered.6 At any rate, whatever the reason for its action with regard to the February 1971 rate increase, the fact remains that Respondent on that occasion announced to the employees that it would, and it did, absorb the entire amount thereof and that this was the last action taken by employees' contributions . However, no plausible reason was given at the hearing for Respondent's making such a commitment, instead of telling the employees in February that there would be an increase in rates, the details of which would be announced later, and that, pending such announcement, the rates would remain the same. (The only effort to explain Respondent's failure to adopt this procedure was contained in some confused testimony by Respondent's vice president, Padon, which apparently assumed that absorption by the employees of part of the February 1971 rate increase would raise Respondent's operating expenses and therefore place it at a competitive disadvantage in bidding for a NASA contract Even after it was pointed out to Padon that the opposite would be true , he professed to be unconvinced) 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent before July 1972, with respect to such an increase. It seems fair, therefore, to regard the 1971 action as superseding the prior, inconsistent treatment of the rate increases in 1967 and 1968, and as establishing as a condition of employment as of July 1972, the requirement that Respondent would absorb the entire amount of any rise in insurance premium rates. There would have been no doubt about this, if there had been no contract at all in the picture. For, in principle, the situation here is no different from the case where an employer, absent a contract, (unilaterally or otherwise) grants a new benefit. Such a grant establishes a new condition of employment and any withdrawal of that benefit (as by Respondent's July 1972 action) would necessarily represent an alteration of that condition. It is not clear why Respondent should be in any better position here, because there was a contract, the literal wording of which required it to take the action it in fact took in February 1971.7 Since Respondent admittedly did not absorb the entire rate increase of July 1972, but, without consulting the Union, deducted from the employees' pay a portion of that increase, it is found that Respondent violated Section 8(a)(5) and (1) of the Act. - It is alleged that Respondent further violated those provisions by refusing to entertain a grievance concerning its foregoing unilateral action. On this issue, the Union's chief steward, Bray, testified that the increased deduction for insurance was first reflected in the paycheck he received on July 24; that the next day he complained to Respondent's vice president, Robbins, that such increase was "a violation of the contract"; that Robbins rejoined that there was no contract; that Bray declared he would file a grievance; and that Robbins averred that no grievance could be filed, because there was no contract. Robbins' version was that Bray on that occasion protested not only the higher insurance deduction but also the discontinuance of the checkoff of union dues; and that Robbins explained that the dues were no longer being deducted because there was no longer any contract and that the increase in the employees' insurance contribution was in accord with Respondent's past practice of passing on to them on a pro rata basis increases in premiums billed by the carrier. According to Robbins, Bray's only response was that he understood Robbins' explanation but would have to notify union headquarters, and Robbins specifical- ly denied refusing to process any grievance by Bray over the increased deductions for insurance. Although it appears that Bray did contact the Union about the matter, no effort was made by it to take it up with Respondent as a grievance. On the basis of demeanor, Robbins is credited, and it is found that there was no announcement by him to r Respondent contends that the literal language of the contract should be disregarded, because it did not reflect the true intent of the parties On this point, Respondent cites testimony by certain of its representatives in the negotiations for the 1967 contract that it was agreed between them and the Union's counsel, Mamet, that the provision therein that the "present cost to the employees for all coverage shall not be increased" was not to be taken literally but was to be taken to mean only that the employees' pro rata share of such cost would not be increased Even if such parol evidence be deemed admissible to vary the terms of the contract, there is a serious question as to the credibility of such testimony Mamet categorically denied that there was any such side agreement One of Respondent's negotiators, Crowther, attempted to explain the failure to amend the contract to reflect Bray that the grievance procedure had expired with the contract. Accordingly, no violation is found on the grievance issue. 3. The Columbus Day issue The contract contains the following provision on paid holidays: The following holidays shall be observed: New Year's Day, Washington's Birthday, Memorial Day, Fourth of July, Labor Day, Veteran's Day, Thanksgiving Day. In the event N.A.S.A. declares and observes as a legal holiday one in addition to those set forth above, such holiday shall also be observed under this agreement. In 1971, pursuant to the last sentence of the foregoing provision, Respondent granted all the unit employees a paid holiday on Columbus Day but in 1972, it granted such a holiday only to the Seabrook group. It is evident, therefore, that Respondent's disparate treatment of the remaining employees in this respect was a departure from past practice under the contract. Respondent contends, in its brief, that there was no violation of the Act here, because its action with respect to Columbus Day merely implemented a proposal put forth by it at the bargaining table, which had been negotiated to an impasse. This apparently has reference to Respondent's proposal to eliminate entirely all paid holidays, which, like Columbus Day, were based on action taken by NASA. However, there was no contradiction of Union Agent Beeman's testimony, which is credited, that, although Respondent proposed this change on September 13, there was no discussion thereof at that meeting, which was the last one before Columbus Day, and it was not specifically rejected by the Union until the meeting in March 1973. Accordingly, there is no warrant for finding an impasse on the issue before October 9. Respondent contends, also, that under Board precedents it was privileged to take the action it did with regard to Columbus Day, because it gave the Union advance notice of its intention to treat that day as a paid holiday only for the Seabrook employees and discussed the matter with a representative of the Union-Bray-several days before the holiday. Initially, it may be pointed out that the precedents on which Respondent relies deal only with unilateral changes made with regard to a matter not involved, as here, in current, contract negotiations, and I am aware of no holding that, absent impasse, an employer may effectuate on a piecemeal basis proposals that are being currently considered in contract negotiations, provided only that he the parties' alleged intent as a concession to Mamet, who, according to Crowther, insisted on retaining the above -quoted language because of the advantage that might accrue to him therefrom in bargaining with other employers However, the other two company representatives involved in the negotiation of the instant clause failed to corroborate Crowther's foregoing explanation of the matter . At any rate, even if it be assumed that there was such an oral side agreement and that the parties conformed thereto prior to February 1, 1971, it is clear that Respondent departed therefrom on that date with the acquiescence of the Union and that to that extent there was a modification of the terms of employment with respect to the employees' liability to pay any part of an increase in premium rates. A-V CORPORATION gives the union advance notice of his intention to do so. Such a ruling would subvert the principle that , even after extensive bargaining about a contract proposal, an employ- er may not unilaterally give effect thereto, unless and until an impasse has been reached in the contract negotiations .8 Moreover, it is clear from the testimony of Respondent's vice president, Padon, who instructed Robbins to give the aforementioned notice to Bray, that the purpose thereof was not to elicit any expression of the Union 's views on the matter but only to advise it of a firm decision reached by management, and that Respondent did not envisage reconsidering such decision in the light of anything the Union might say. It is found, therefore , that the Union had no meaningful opportunity to be heard on the issue. Respondent's final contention is that through its repre- sentatives, Bray and Beeman , the Union indicated acquies- cence in Respondent's action . With respect to Bray, Robbins testified that, when Bray was notified of the impending denial of holiday benefits to the downtown employees, he indicated that he understood Respondent's reasons and that he would contact union headquarters. Bray disputed this, insisting that he protested Respondent's action as inconsistent with the parties' contract. However, even if one accepts Robbins' version , it is clear that Bray was not purporting to speak for the Union, putting Robbins on notice that the matter would be referred to higher authority in the Union . Thus, there is no basis for finding any acquiescence or waiver by the Union at that point. With respect to Beeman, the record shows that on October 4, he had written Respondent, inquiring about its plan with regard to designating Columbus Day (October 9) as a paid holiday, and that, while awaiting a reply, he received a call from Bray about his afore-cited conversa- tion with Robbins. Thereafter, Beeman received a letter from Respondent's counsel dated October 9, which recited that Bray had already been informed that Respondent would treat Columbus Day as a paid holiday only with respect to the Seabrook employees and that Bray had expressed "concurrence with the Company." Beeman testified that he did not reply to this letter but referred the matter to the Union's counsel (who on December 9 filed a charge with respect thereto). In its brief, Respondent contends that Beeman's foregoing testimony should be construed as an admission that he "considered the matter settled at the local level." While the fact that Beeman was apprised of Bray's alleged "concurrence" in Respondent's action and failed to repudiate it might , standing alone, warrant an inference that Beeman endorsed such "concur- rence," any such inference is negated by the fact that Beeman turned the matter over to counsel, who sought redress from the Board. Accordingly, there is insufficient basis in the record for finding that the matter was in fact settled at the local, or any other, level. It is accordingly found that, by its foregoing unilateral withdrawal of holiday benefits from the "downtown" employees, Respondent violated Section 8(a)(5) and (1). 459 4. The "Truman Day" issue As already related, Respondent granted its Seabrook, but not its downtown, employees time off with pay on December 28, which was the day designated by President Nixon as a day of mourning for the late president Truman. This was a new benefit, which had no precedent in past practice nor any basis in the expired contract. Bray testified that about 3:30 p.m., on December 27, Robbins notified him that the Seabrook employees would be given time off with pay the next day. Robbins testified that he made this disclosure to Bray about 2:30 p.m. on December 27, as soon as he learned that NASA had agreed to reimburse Respondent for the "holiday" pay involved. There is nothing in either of the foregoing versions to suggest that the purpose of Robbins ' notification was to give the Union an opportunity to express its views on the matter. Indeed, the only explanation that the record affords for the foregoing advance notice to Bray is contained in Robbins' testimony that , after apprising Bray of Respondent's decision, the witness asked Bray if he would announce it to the employees , which he declined to do. Although it is commendable that Respondent thus offered the Union an opportunity to be the bearer of good tidings, that did not excuse Respondent's failure to consult the Union before deciding to grant time off with pay on the 28th. While it is true that Respondent, itself, had limited advance notice from NASA that funds-would be available for such a purpose, there was still sufficient time on the afternoon of the 27th for Respondent to attempt to obtain an expression of the Union's views. However, Bray was not asked for his views nor was any effort made to call union headquarters. Instead, the decision was presented to Bray as a fait accompli. It is found that by the foregoing unilateral grant to part of the unit of a new benefit in the form of time off with pay on December 28, Respondent further violated Section 8(a)(5) and (1). 5. The pension issue The expired contract provided for payments by Respon- dent into a pension fund administered by Local 666 for the employees "represented by" it (and into a separate pension fund for the employees "represented by" Local 780). At the September 13 bargaining session, Respondent included in its initial contract an offer to substitute for Local 666's pension plan "a new retirement plan written by General Life Insurance Company," the cost thereof to be borne by the Respondent. At that time, no further details were furnished about the new plan and there was no discussion thereof . On November 9, the Union by letter rejected all Respondent's proposals, without, however, referring specifically to the one involving the retirement plan. At the December 20 meeting, Respondent handed the Union a complete description of the new retirement plan, but the parties had no opportunity to engage in any discussion thereof, nor was the pension issue reached at the March 26 and 27 meetings . It was not until the meeting of May 15, which was the last one before the instant hearing, 8 See Royal Himmel Distilling Company, 203 NLRB No. 62, In. 3 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that there was any meaningful discussion of the issue, the Union setting forth its reasons for preferring to retain the existing plan and Respondent arguing for a change. No agreement was reached. In the meantime, in correspondence with the Union, Respondent's counsel had indicated that it was contem- plating terminating its contributions to the existing plan and, finally, in a letter of May 8, he announced that it had decided to do so, attributing such action to "the union's unavailability for bargaining, the union's illegal bargaining tactics and the union's categorical rejection of good faith bargaining in favor of strike action." By letter dated May 15, Respondent transmitted to Local 666 the money then owed by it to the pension fund, declaring that it would make no further payments for the reasons stated in the May 8 letter, and none has been made. It is alleged that the foregoing action constituted a unilateral change in existing employment conditions, in violation of Section 8(a)(5) and (1). In defending against this charge, Respondent does not contend that there was any impasse in bargaining, which justified its termination of pension payments. Any such contention would not be supportable, in any event, since the decision to stop the payments was made at least a week before the May 15 bargaining session, when the parties for the first time engaged in any significant discussion of the pension issue, and the reasons given by Respondent on May 8, for its decision to stop the payments were not related to any impasse, but only to an alleged refusal by the Union to bargain in good faith .9 Respondent relies, rather, on the contention that Respondent had sufficient advance notice of Respondent's intention to discontinue its contributions to the pension fund but failed to seek bargaining with 9 A charge filed by Respondent alleging an unlawful refusal by the Union to bargain was dismissed by the Regional Director, which dismissal was sustained on appeal by the General Counsel IS In his January 5 , 1973, letter, after advising that Respondent was considering suspension of pension contributions , Respondent's counsel expressed a desire to meet with the Union to resolve "this and other bargaining questions." In his next letter on the subject (on January 22) he stated that Respondent was considering stopping its pension payments and instituting its proposed, substitute pension plan The next letter (of March I) referred only to the prior correspondence on the matter The May 8 letter announced Respondent 's decision to terminate the payments in a context that implied the matter was not negotiable All the foregoing statements appeared in conjunction with a discussion of other bargaining matters and nowhere did Respondent indicate that it considered the question of terminating its pension contributions a separate issue to be dealt with apart from, and in a different manner from , its other contract proposals i i in his brief, the General Counsel moves for reconsideration of a ruling at the hearing rejecting an amendment to the complaint, which contained the allegation that the strike herein, called on April 20, 1973, was an unfair labor practice strike The amendment was rejected because it would have injected into the case a new and complex issue-namely, whether the strike was caused by the various unilateral acts of Respondent discussed above and occurring at least 4 months before the strike or whether it was purely economic, prompted by the more recent developments at the bargaining table It was this court's judgment at the time that the amendment could not be granted without giving Respondent time to prepare to defend against the new allegation and that it would therefore be more expeditious to deal with the issue of the cause of the strike in such proceedings as might apse from any actual refusal of Respondent to reinstate strikers, rather than to litigate the issue at length in the instant case on the assumption that there would be such a refusal (This court stated at the hearing that any such reinstatement issue arising in the future would properly be the subject matter of a compliance proceeding. It would have been more accurate to say that the issue would have to be raised in a new unfair labor practice case based on new charges, alleging a discriminatory refusal to reinstate, and the ensuing respect thereto, and Respondent cites a number of Board decisions holding that an employer discharges his bargain- ing obligation to a union when he gives it advance notice of a proposed change in the terms of employment and an opportunity to request bargaining with respect thereto. However, as already pointed out, in those cases, the employer's action was not taken in the context of contract negotiations addressed, inter alia, to the very subject matter that was affected by the unilateral action. Here, Respon- dent's various contract proposals, including that calling for a change in the existing pension plan, were already on the bargaining table, when Respondent, on January 5, 1973, first alerted the Union to the possibility that Respondent would stop contributing to the existing plan. Under those circumstances, the Union' was entitled to regard the projected action as merely another proposal, to be taken up in due course at the bargaining table,10 and no adverse inference may be drawn from its failure specifically to request bargaining with respect to a matter that was already the subject of contract negotiations. Moreover, as already noted, to extend the doctrine of the cases cited by Respondent to the instant situation would be incompatible with the well-settled rule that an employer engaged in contract negotiations may not effect a unilateral change in a term of employment , unless and until such negotiations have arrived at an impasse (and then, only if the change coincides with the employer's last offer on the subject). That rule is deemed controlling here. Accordingly, it is found that, by unilaterally discontinuing its contributions to the Union's pension fund on May 15, Respondent violated Section 8(a)(5) and (1). 11 discussion in this footnote assumes that to be the case ) The General Counsel now contends, as he did at the hearing, that under the rationale of the Board's decisions in Greenville Cotton Oil Company, 92 NLRB 1033, and The Davis Fire Brick Company, 131 NLRB 393, any new charge filed after the end of the strike alleging unlawful refusal to reinstate unfair labor practice strikers would be barred by Section 10(b), because to establish that the instant strike was caused by unfair labor practices the General Counsel would have to adduce evidence concerning events that occurred more than 6 months before the filing of such charge. (The unfair labor practices which allegedly caused the instant strike occurred in July, October, and December. 1972, and at the time that the amendment to the complaint was offered (May 30, 1973) the July and October incidents were already over 6 months old and it is not unlikely that by the time the strikers apply for reinstatement even the December incident will be more than 6 months old ) However, the situation here is more nearly akin to that which existed in Brown and Root, Inc, 99 NLRB 1031, 1035-1036, enfd 203 F 2d 139, 146 (C A 8) There, a timely charge had already been filed with respect to the unfair labor practices that allegedly caused the strike and a violation of the Act had already been found on the basis of that charge. The Board there held that under those circumstances Greenville Cotton did not apply As for the applicability here of Davis Fire Brick, supra (as well as Greenville Cotton), see The Philip Carey Manufacturing Company, 140 NLRB 1103, 1112, and the discussion of the instant issue in the opinion of the court of appeals in the enforcement proceeding in that case (331 F.2d 720 (C A 6, 1964)) Finally, it may be noted that the Court of Appeals for the Fifth Circuit, in which the case at bar arose, has rejected the approach taken by the Board in Greenville Cotton and has held that in the case of a refusal to reinstate unfair labor practice strikers the critical date for 10(b) purposes is not the date of the unfair labor practices causing the strike but the date of the refusal to reinstate N LR.B. v American Aggregate Company, Inc, 305 F 2d 559 (C A 5, 1962) (The General Counsel's brief suggests that that court affirmed the Board's aforecited ruling in Greenville Cotton. However, a reading of the court's opinion in that case (197 F 2d 326 (C.A 5)) reveals that it did not have before it any appeal from the Board's dismissal of the A-V CORPORATION 461 THE REMEDY It having been found that Respondent violated Section 8(a)(5) and (1) by its unilateral increase in the level of employee contributions to the cost of their insurance coverage, by its unilateral refusal to treat Columbus Day as a paid holiday for the downtown employees, by its unilateral grant of time off with pay to the Seabrook employees on December 28, and by its unilateral discontin- uance of contributions to Local 666's pension fund, it will be recommended that it be required to cease and desist therefrom and to take appropriate, affirmative action. As it is Board policy, where an employer has unilaterally withdrawn employee benefits, to require that he restore the status quo ante to the extent feasible,12 it will be recommended that Respondent be ordered to reimburse the employees for the increase in deductions from their pay since July 1, 1972, on account of the increase in rates of insurance premiums, together with interest at 6 percent per annum on the amounts improperly deducted. With respect to the denial of holiday benefits on Columbus Day to part of the unit, it will be recommended that, in accordance with the foregoing Board policy, Respondent be directed to reimburse the downtown employees for the loss of such benefits by compensating them for time worked on Columbus Day in 1972, in accordance with the provision of the parties' expired contract relative to payment for work performed on one of the days designated in the contract as a holiday.13 In addition, Respondent will be liable to pay interest at the rate of 6 percent per annum on the amount of such premium pay. As for the discontinuance of contributions to the pension fund, it will be recommended that liability be imposed on Respondent for such contributions from the date of such discontinuance and that such liability continue until such time as the parties have in good faith negotiated any change in such liability or until such change is instituted unilaterally by Respondent after reaching an impasse in good-faith bargaining or after the Union has ceased to be the statutory representative of the employees. The fashioning of a remedy for the unilateral grant of time off with pay to part of the unit on December 28, presents a more difficult question. Here, there was not involved any reduction in existing benefits but the granting of a new benefit to part of the unit-the Seabrook employees-whilst withholding it from the downtown group. The General Counsel contends that the appropriate remedy is to require Respondent to reimburse the downtown employees for any wages lost as a result of Respondent's failure to grant them time off with pay on December 28. This remedy is necessarily predicated on the assumption that, had the parties bargained about the matter, Respondent might well have extended to the downtown employees the same benefit as it gave the other employees. However, this assumption seems unrealistic. In December 1972, only about 30 percent of Respondent's work was done for NASA, the rest being performed for private firms. It is clear that Respondent based its December 28 action on the fact that NASA had agreed to reimburse Respondent for the extra cost that would be incurred by it in granting time off with pay to the Seabrook employees on that date and that Respondent had no reason to believe or expect that its other customers would reimburse it for any like benefit to its downtown employees. Thus, had it consulted the Union about the matter, it does not seem likely that Respondent would have acceded to any request by the Union that Respondent pay the downtown employees out of its own pocket for an extra "holiday" on December 28. It seems far more likely, in view of the economics of the matter, that, had the Union objected to Respondent's granting holiday benefits to only part of the unit, Respondent either would have ignored that objection or would not have granted such benefits to anyone in the unit. Accordingly, it is not believed that effectuation of the policies of the Act requires that Respondent make the downtown employees whole on account of its failure to grant them time off with pay on December 28. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce under the Act. 2. The Union is a labor organization under the Act. 3. The Union is the statutory representative of the employees in the following appropriate unit: All Respondent's employees, including animation cameramen, but excluding office clerical employees, executives, professional employees, animation depart- ment employees, guards, watchmen and supervisors as defined in the Act. 4. Respondent violated Section 8(aX5) and (1) of the Act by unilaterally modifying existing terms and condi- tions of employment in the following respects: (a) Requiring its unit employees, on and after July 1, 1972, to absorb part of an increase in insurance premium rates. (b) Treating Columbus Day in 1972 as a paid holiday for only part of the employees in the foregoing unit. allegations of unlawful denial of reinstatement to strikers but only a petition for enforcement of a Board order with respect to other matters in that case, and there is no reference in that opinion to the former allegations) In this respect, the Fifth Circuit is in agreement with the views of the Sixth (Philip Carey, supra ) and the Eighth (Brown and Root, supra) Thus, it is clear that all the courts that have considered the Board's Greenville Cotton rule have rejected it and that the Board, itself, has not extended that rule to a case where timely charges have in fact been filed, as here, with respect to unfair labor practices that antedated the strike and such charges have been fully litigated, culminating in violation findings Upon due consideration of all the foregoing matters. it appears that under the circumstances of this case the interests of justice and of sound administration would be better served by withholding litigation of the question of the cause of the strike until it becomes a real issue The motion for reconsideration is therefore denied. 12 Southland Paper Mills, Inc., 161 NLRB 1076, 1078. i 1 See section 6 2 of the contract, which calls for the payment of time- and-one-half for the first 12 hours worked on a holiday, in addition to the regular holiday pay 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Granting part of such employees a paid holiday on 5. The aforesaid violations are unfair labor.practices December 28, 1972. affecting commerce. (d) Terminating its contributions to Local 666 's pension [Recommended Order omitted from publication.] fund.