Stokely-Van Camp, Inc.

STOKELY-VAN CAMP, INC. 961 Stokely-Van Camp, Inc. and Earl Martin. Case 25- on June 6, 1980. 3 During a June 4 collective-bar- CA-12292 gaining session, the Union notified Respondent that Janua 71982 ,a strike would be called at midnight on Friday, January 7, 1982January 7, 1982June 6, unless new agreements were ratified by that DECISION AND ORDER time. Agreement on new contracts was not reached before the expiration of the old contracts and, con- BY MEMBERS FANNING, JENKINS, AND sequently, a strike commenced at midnight, June ZIMMERMAN 6.4 Prior to the expiration of the collective-bargain- On May 26, 1981, Administrative Law Judge ing agreements and following the Union's notice of John H. West issued the attached Decision in this its intent to strike, Respondent's labor relations proceeding. Thereafter, counsel for General Coun- manager, James L. Spurgeon, decided, without no- sel filed exceptions and a supporting brief, and Re- tifying the Union, to cancel all scheduled employee spondent filed an answering brief. vacations and withhold payment of vacation bene- Pursuant to the provisions of Section 3(b) of the fits.5 Following the settlement of the strike, all em- National Labor Relations Act, as amended, the Na- ployees were formally notified by Respondent that tional Labor Relations Board has delegated its au- all vacations previously scheduled for June, July, thority in this proceeding to a three-member panel. August, and September had been "voided" and The Board has considered the record and the at- were to be rescheduled before December 29. Ac- tached Decision in light of the exceptions and cordingly, Respondent's employees took vacation briefs and has decided to affirm the rulings, find- time and received vacation pay under the terms of ings,' and recommendations of the Administrative the new contract. 6 No employee received money in Law Judge only to the extent consistent herewith. lieu of time off as a result of rescheduling his vaca- The complaint alleges that Respondent violated tion. Section 8(a)(3) and (1) of the Act by attempting to The collective-bargaining agreements between discourage its employees from engaging in a strike Respondent and the Union provide, inter alia, that and other protected concerted activities by with- each employee who has at least 1 anniversary year 7 holding payment of accrued vacation pay. In its of continuous service and who has worked at least post-hearing brief to the Administrative Law 150 days within the anniversary year in which va- Judge, the General Counsel also alleges that Re- cation time is earned shall accrue vacation time and spondent violated Section 8(a)(5) of the Act by vacation pay in direct proportion to the number of canceling certain of its employees' scheduled vaca- anniversary years of service with the Company; tions without notice to the Union and without that employees shall receive vacation pay at the be- giving the Union an opportunity to bargain over ginning of their vacation period; and that "vaca- the unilateral change in working conditions. The tions may, as far as possible, be scheduled for the Administrative Law Judge dismissed the complaint employees . . . with mutual agreement of the em- and the General Counsel's additional allegation in ployees and the Company." The contracts also their entirety because he found that Respondent's contain management-rights clauses which speak to reasons for withholding vacation pay and reschedu- Respondent's rights to designate production sched- ling vacations were legitimate and substantial, and ules and to direct the work force. The agreements that Respondent's actions were not motivated by do not provide for pay in lieu of actual vacation. antiunion considerations. For the reasons set forth Respondent stated that it is customary for employ- below, we find merit in the General Counsel's ex- ees to begin their vacations on Monday and that it ceptions and reverse the Administrative Law Judge's Decision. ' All dates herein refer to the year 1980, unless otherwise specifically The collective-bargaining agreements in effect stated between Respondent and the Union2 were to expire 2 The strike ended on August 23 following the ratification of new col- between Respondent and the Union 2 were to expire lective-bargaining agreements. ' The General Counsel characterizes Respondent's decision with re- ' The General Counsel has excepted to certain credibility findings spect to vacations as a withholding of vacation pay and unilateral cancel- made by the Administrative Law Judge. It is the Board's established lation and rescheduling of vacations, while Respondent and the Adminis- policy not to overrule an administrative law judge's resolutions with re- trative Law Judge refer to the action merely as a rescheduling of vaca- spect to credibility unless the clear preponderance of all of the relevant tions. Despite the differing perceptions of Respondent's actions, it is un- evidence convinces us that the resolutions are incorrect. Standard Dry disputed that, as a direct result of Respondent's decision, 82 of Respond. Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. ent's employees did not receive scheduled vacation benefits which had 1951). We have carefully examined the record and find no basis for re- accrued under the terms of the expired collective-bargaining agreements. versing his findings. As noted by the Administrative Law Judge, the vacation pay eventu- 2 Respondent's business primarily consists of a can manufacturing plant ally received by the employees was greater than that which they would and a food processing plant. The Union is the collective-bargaining repre- have received under the old contract because a higher wage package was sentative of the hourly paid production, maintenance, and warehouse em- included in the new contract. ployees at each plant. Respondent and the Union are signatories to col- 'The contracts define "anniversary year" as the 12 months following lective-bargaining agreements at each plant. the employee's anniversary date of last hire. 259 NLRB No. 128 STOKELY-VAN CAMP, INC. 961 Stokely-Van Camp, Inc. and Earl Martin. Case 25- on June 6, 1980. 3 During a June 4 collective-bar- CA-12292 gaining session, the Union notified Respondent that January 7, 1982 a strike would be called at midnight on Friday, January 7, 1982T - ii i June 6, unless new agreements were ratified by that DECISION AND ORDER time. Agreement on new contracts was not reached before the expiration of the old contracts and, con- BY MEMBERS FANNING, JENKINS, AND sequently, a strike commenced at midnight, June ZIMMERMAN 6.1 Prior to the expiration of the collective-bargain- On May 26, 1981, Administrative Law Judge ing agreements and following the Union's notice of John H. West issued the attached Decision in this its intent to strike, Respondent's labor relations proceeding. Thereafter, counsel for General Coun- manager, James L. Spurgeon, decided, without no- sel filed exceptions and a supporting brief, and Re- tifying the Union, to cancel all scheduled employee spondent filed an answering brief. vacations and withhold payment of vacation bene- Pursuant to the provisions of Section 3(b) of the fits. 5 Following the settlement of the strike, all em- National Labor Relations Act, as amended, the Na- ployees were formally notified by Respondent that tional Labor Relations Board has delegated its au- all vacations previously scheduled for June, July, thority in this proceeding to a three-member panel. August, and September had been "voided" and The Board has considered the record and the at- were to be rescheduled before December 29. Ac- tached Decision in light of the exceptions and cordingly, Respondent's employees took vacation briefs and has decided to affirm the rulings, find- time and received vacation pay under the terms of ings,' and recommendations of the Administrative the new contract. 6 No employee received money in Law Judge only to the extent consistent herewith. lieu of time off as a result of rescheduling his vaca- The complaint alleges that Respondent violated tion. Section 8(a)(3) and (1) of the Act by attempting to The collective-bargaining agreements between discourage its employees from engaging in a strike Respondent and the Union provide, inter alia, that and other protected concerted activities by with- each employee who has at least 1 anniversary year 7 holding payment of accrued vacation pay. In its of continuous service and who has worked at least post-hearing brief to the Administrative Law 150 days within the anniversary year in which va- Judge, the General Counsel also alleges that Re- cation time is earned shall accrue vacation time and spondent violated Section 8(a)(5) of the Act by vacation pay in direct proportion to the number of canceling certain of its employees' scheduled vaca- anniversary years of service with the Company; tions without notice to the Union and without that employees shall receive vacation pay at the be- giving the Union an opportunity to bargain over ginning of their vacation period; and that "vaca- the unilateral change in working conditions. The tions may, as far as possible, be scheduled for the Administrative Law Judge dismissed the complaint employees . . . with mutual agreement of the em- and the General Counsel's additional allegation in ployees and the Company." The contracts also their entirety because he found that Respondent's contain management-rights clauses which speak to reasons for withholding vacation pay and reschedu- Respondent's rights to designate production sched- ling vacations were legitimate and substantial, and ules and to direct the work force. The agreements that Respondent's actions were not motivated by do not provide for pay in lieu of actual vacation. antiunion considerations. For the reasons set forth Respondent stated that it is customary for employ- below, we find merit in the General Counsel's ex- ees to begin their vacations on Monday and that it ceptions and reverse the Administrative Law Judge's Decision. IAll dates herein refer to the year 1980, unless otherwise specifically The collective-bargaining agreements in effect stated. between Respondent and the Unionz were to expire 2 The strike ended on August 23 f o ll ow ing t he ra t i fi c a tion o f n ew col- between Resondent and he Union wee to expire lective-bargaining agreements. I The General Counsel characterizes Respondent's decision with re- ' The General Counsel has excepted to certain credibility findings spect to vacations as a withholding of vacation pay and unilateral cancel- made by the Administrative Law Judge. It is the Board's established lation and rescheduling of vacations, while Respondent and the Adminis- policy not to overrule an administrative law judge's resolutions with re- trative Law Judge refer to the action merely as a rescheduling of vaca- spect to credibility unless the clear preponderance of all of the relevant tions. Despite the differing perceptions of Respondent's actions, it is un- evidence convinces us that the resolutions are incorrect. Standard Dry disputed that, as a direct result of Respondent's decision, 82 of Respond. Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. ent's employees did not receive scheduled vacation benefits which had 1951). We have carefully examined the record and find no basis for re- accrued under the terms of the expired collective-bargaining agreements. versing his findings. As noted by the Administrative Law Judge, the vacation pay evenlu- I Respondent's business primarily consists of a can manufacturing plant ally received by the employees was greater than that which they would and a food processing plant. The Union is the collective-bargaining repre- have received under the old contract because a higher wage package was sentative of the hourly paid production, maintenance, and warehouse em- included in the new contract. ployees at each plant. Respondent and the Union are signatories to col- IThe contracts define "anniversary year" as the 12 months following lective-bargaining agreements at each plant,.the employee's anniversary date of last hire. 259 NLRB No. 128 STOKELY-VAN CAMP, INC. 961 Stokely-Van Camp, Inc. and Earl Martin. Case 25- on June 6, 1980. 3 During a June 4 collective-bar- CA-12292 gaining session, the Union notified Respondent that January 7, 1982 a strike would be called at midnight on Friday, January 7, 1982T - ii i June 6, unless new agreements were ratified by that DECISION AND ORDER time. Agreement on new contracts was not reached before the expiration of the old contracts and, con- BY MEMBERS FANNING, JENKINS, AND sequently, a strike commenced at midnight, June ZIMMERMAN 6.1 Prior to the expiration of the collective-bargain- On May 26, 1981, Administrative Law Judge ing agreements and following the Union's notice of John H. West issued the attached Decision in this its intent to strike, Respondent's labor relations proceeding. Thereafter, counsel for General Coun- manager, James L. Spurgeon, decided, without no- sel filed exceptions and a supporting brief, and Re- tifying the Union, to cancel all scheduled employee spondent filed an answering brief. vacations and withhold payment of vacation bene- Pursuant to the provisions of Section 3(b) of the fits. 5 Following the settlement of the strike, all em- National Labor Relations Act, as amended, the Na- ployees were formally notified by Respondent that tional Labor Relations Board has delegated its au- all vacations previously scheduled for June, July, thority in this proceeding to a three-member panel. August, and September had been "voided" and The Board has considered the record and the at- were to be rescheduled before December 29. Ac- tached Decision in light of the exceptions and cordingly, Respondent's employees took vacation briefs and has decided to affirm the rulings, find- time and received vacation pay under the terms of ings,' and recommendations of the Administrative the new contract. 6 No employee received money in Law Judge only to the extent consistent herewith. lieu of time off as a result of rescheduling his vaca- The complaint alleges that Respondent violated tion. Section 8(a)(3) and (1) of the Act by attempting to The collective-bargaining agreements between discourage its employees from engaging in a strike Respondent and the Union provide, inter alia, that and other protected concerted activities by with- each employee who has at least 1 anniversary year 7 holding payment of accrued vacation pay. In its of continuous service and who has worked at least post-hearing brief to the Administrative Law 150 days within the anniversary year in which va- Judge, the General Counsel also alleges that Re- cation time is earned shall accrue vacation time and spondent violated Section 8(a)(5) of the Act by vacation pay in direct proportion to the number of canceling certain of its employees' scheduled vaca- anniversary years of service with the Company; tions without notice to the Union and without that employees shall receive vacation pay at the be- giving the Union an opportunity to bargain over ginning of their vacation period; and that "vaca- the unilateral change in working conditions. The tions may, as far as possible, be scheduled for the Administrative Law Judge dismissed the complaint employees . . . with mutual agreement of the em- and the General Counsel's additional allegation in ployees and the Company." The contracts also their entirety because he found that Respondent's contain management-rights clauses which speak to reasons for withholding vacation pay and reschedu- Respondent's rights to designate production sched- ling vacations were legitimate and substantial, and ules and to direct the work force. The agreements that Respondent's actions were not motivated by do not provide for pay in lieu of actual vacation. antiunion considerations. For the reasons set forth Respondent stated that it is customary for employ- below, we find merit in the General Counsel's ex- ees to begin their vacations on Monday and that it ceptions and reverse the Administrative Law Judge's Decision. IAll dates herein refer to the year 1980, unless otherwise specifically The collective-bargaining agreements in effect stated. between Respondent and the Unionz were to expire 2 The strike ended on August 23 f o ll ow ing t he ra t i fi c a tion o f n ew col- between Resondent and he Union wee to expire lective-bargaining agreements. I The General Counsel characterizes Respondent's decision with re- ' The General Counsel has excepted to certain credibility findings spect to vacations as a withholding of vacation pay and unilateral cancel- made by the Administrative Law Judge. It is the Board's established lation and rescheduling of vacations, while Respondent and the Adminis- policy not to overrule an administrative law judge's resolutions with re- trative Law Judge refer to the action merely as a rescheduling of vaca- spect to credibility unless the clear preponderance of all of the relevant tions. Despite the differing perceptions of Respondent's actions, it is un- evidence convinces us that the resolutions are incorrect. Standard Dry disputed that, as a direct result of Respondent's decision, 82 of Respond. Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. ent's employees did not receive scheduled vacation benefits which had 1951). We have carefully examined the record and find no basis for re- accrued under the terms of the expired collective-bargaining agreements. versing his findings. As noted by the Administrative Law Judge, the vacation pay evenlu- I Respondent's business primarily consists of a can manufacturing plant ally received by the employees was greater than that which they would and a food processing plant. The Union is the collective-bargaining repre- have received under the old contract because a higher wage package was sentative of the hourly paid production, maintenance, and warehouse em- included in the new contract. ployees at each plant. Respondent and the Union are signatories to col- IThe contracts define "anniversary year" as the 12 months following lective-bargaining agreements at each plant,.the employee's anniversary date of last hire. 259 NLRB No. 128 STOKELY-VAN CAMP, INC. 961 Stokely-Van Camp, Inc. and Earl Martin. Case 25- on June 6, 1980. 3 During a June 4 collective-bar- CA-12292 gaining session, the Union notified Respondent that January 7, 1982 a strike would be called at midnight on Friday, January 7, 1982T - ii i June 6, unless new agreements were ratified by that DECISION AND ORDER time. Agreement on new contracts was not reached before the expiration of the old contracts and, con- BY MEMBERS FANNING, JENKINS, AND sequently, a strike commenced at midnight, June ZIMMERMAN 6.1 Prior to the expiration of the collective-bargain- On May 26, 1981, Administrative Law Judge ing agreements and following the Union's notice of John H. West issued the attached Decision in this its intent to strike, Respondent's labor relations proceeding. Thereafter, counsel for General Coun- manager, James L. Spurgeon, decided, without no- sel filed exceptions and a supporting brief, and Re- tifying the Union, to cancel all scheduled employee spondent filed an answering brief. vacations and withhold payment of vacation bene- Pursuant to the provisions of Section 3(b) of the fits. 5 Following the settlement of the strike, all em- National Labor Relations Act, as amended, the Na- ployees were formally notified by Respondent that tional Labor Relations Board has delegated its au- all vacations previously scheduled for June, July, thority in this proceeding to a three-member panel. August, and September had been "voided" and The Board has considered the record and the at- were to be rescheduled before December 29. Ac- tached Decision in light of the exceptions and cordingly, Respondent's employees took vacation briefs and has decided to affirm the rulings, find- time and received vacation pay under the terms of ings,' and recommendations of the Administrative the new contract. 6 No employee received money in Law Judge only to the extent consistent herewith. lieu of time off as a result of rescheduling his vaca- The complaint alleges that Respondent violated tion. Section 8(a)(3) and (1) of the Act by attempting to The collective-bargaining agreements between discourage its employees from engaging in a strike Respondent and the Union provide, inter alia, that and other protected concerted activities by with- each employee who has at least 1 anniversary year 7 holding payment of accrued vacation pay. In its of continuous service and who has worked at least post-hearing brief to the Administrative Law 150 days within the anniversary year in which va- Judge, the General Counsel also alleges that Re- cation time is earned shall accrue vacation time and spondent violated Section 8(a)(5) of the Act by vacation pay in direct proportion to the number of canceling certain of its employees' scheduled vaca- anniversary years of service with the Company; tions without notice to the Union and without that employees shall receive vacation pay at the be- giving the Union an opportunity to bargain over ginning of their vacation period; and that "vaca- the unilateral change in working conditions. The tions may, as far as possible, be scheduled for the Administrative Law Judge dismissed the complaint employees . . . with mutual agreement of the em- and the General Counsel's additional allegation in ployees and the Company." The contracts also their entirety because he found that Respondent's contain management-rights clauses which speak to reasons for withholding vacation pay and reschedu- Respondent's rights to designate production sched- ling vacations were legitimate and substantial, and ules and to direct the work force. The agreements that Respondent's actions were not motivated by do not provide for pay in lieu of actual vacation. antiunion considerations. For the reasons set forth Respondent stated that it is customary for employ- below, we find merit in the General Counsel's ex- ees to begin their vacations on Monday and that it ceptions and reverse the Administrative Law Judge's Decision. IAll dates herein refer to the year 1980, unless otherwise specifically The collective-bargaining agreements in effect stated. between Respondent and the Unionz were to expire 2 The strike ended on August 23 f o ll ow ing t he ra t i fi c a tion o f n ew col- between Resondent and he Union wee to expire lective-bargaining agreements. I The General Counsel characterizes Respondent's decision with re- ' The General Counsel has excepted to certain credibility findings spect to vacations as a withholding of vacation pay and unilateral cancel- made by the Administrative Law Judge. It is the Board's established lation and rescheduling of vacations, while Respondent and the Adminis- policy not to overrule an administrative law judge's resolutions with re- trative Law Judge refer to the action merely as a rescheduling of vaca- spect to credibility unless the clear preponderance of all of the relevant tions. Despite the differing perceptions of Respondent's actions, it is un- evidence convinces us that the resolutions are incorrect. Standard Dry disputed that, as a direct result of Respondent's decision, 82 of Respond. Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. ent's employees did not receive scheduled vacation benefits which had 1951). We have carefully examined the record and find no basis for re- accrued under the terms of the expired collective-bargaining agreements. versing his findings. As noted by the Administrative Law Judge, the vacation pay evenlu- I Respondent's business primarily consists of a can manufacturing plant ally received by the employees was greater than that which they would and a food processing plant. The Union is the collective-bargaining repre- have received under the old contract because a higher wage package was sentative of the hourly paid production, maintenance, and warehouse em- included in the new contract. ployees at each plant. Respondent and the Union are signatories to col- IThe contracts define "anniversary year" as the 12 months following lective-bargaining agreements at each plant,.the employee's anniversary date of last hire. 259 NLRB No. 128 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is an established practice for Respondent to pay va- The pertinent evidence shows that, during a cation benefits on the Friday preceding the start of strike in 1974, Respondent's employees were paid the vacation period. their accrued vacation pay although they were re- In dismissing the complaint, the Administrative quired to take vacations following the strike.9 In Law Judge found that Respondent did not unlaw- the present case, all vacation benefits were can- fully reschedule its employees' vacations, that it did celed for the duration of the strike.' 0 In 1977, in re- so in accordance with past practice and the perti- sponse to the Union's threat to strike, Respondent nent provisions of the contracts, and that Respond- posted a notice stating that in the event of a strike ent, therefore, had legitimate business reasons for no vacation benefits would be paid and all vaca- rescheduling the vacations. Further, the Adminis- tions would be rescheduled, but no strike occurred, trative Law Judge found that the record contains and no vacation benefits were withheld or vaca- no evidence of union animus or hostility. tions canceled. Here, Respondent canceled vaca- Respondent contends that its decision to cancel tions and withheld vacation pay from employees scheduled vacations and withhold accrued vacation prior to the commencement of the strike and pay was based on business justification; i.e., its past before it could be determined that a strike actually practice and its belief that it had a contractual right was going to take place. The 1974 and 1977 in- to do so. 8 It asserts that, pursuant to those consid- stances encompass Respondent's history of past erations, it reached that decision (1) because it was practice in strike-related situations, and they clearly not contractually required to pay vacation pay in not contractually required to pay vacation pay in fail to establish the pattern claimed by Respondent. lieu of vacation; (2) because it did not know how many employees would cross the picket line and, if Respondent further asserts as a business justifica- production continued during the strike, Respondent tion that an employee must be working in order to wanted to maximize the number of employees go on vacation and, because the employees were available to work; and (3) to provide periods of striking rather than working, it was permissible to rest and relaxation away from work from which it cancel their vacations and withhold vacation bene- would benefit in terms of increased efficiency, and, fits. This contention, however, is not supported by therefore, an employee must be working in order either its bargaining agreements or its past practice. to take a vacation. The General Counsel argues As noted, the contract is silent in this regard. that, but for the strike, the employees entitled Moreover, on June 6, before it knew who, if would have received vacation pay in accordance anyone, would participate in the called strike, Re- with the contracts and past practice, and that, spondent canceled vacations and withheld vacation under N.L.R.B v. Great Dane Trailers, Inc., 388 pay from employees who, but for the strike, would U.S. 26 (1967), Respondent's failure to pay vaca- have received their vacation benefits well before tion benefits when due was discriminatory and in- the start of the strike. In addition, the withholding herently destructive of employees' rights and viola- of such benefits from nonworking employees has tive of the Act, even in the absence of independent not, in fact, been Respondent's practice. The evidence of unlawful motive. Alternatively, the record shows instead that vacation benefits consist- General Counsel asserts that the employees had ently have been provided on a regular basis to em- satisfied all contractual requirements necessary to ployees on leave of absence and sick leave immedi- accrue and receive vacation benefits, and Respond- ately before the start of their scheduled vacations. ent's asserted business reasons for canceling bene- Thus, Respondent's asserted belief that it had a fits were pretextual and motivated by antiunion contractual right to withhold the benefits cannot considerations. withstand scrutiny. None of the contractual provisions relied on, in- It is immaterial, therefore, that Respondent was eluding the management-rights clauses, clearly or not contractually required to pay vacation pay in specifically authorizes the conduct in which Re- lieu of vacation. Rather, Respondent was not em- spondent engaged. Respondent claims, and the Ad- powered by either the collective-bargaining agree- ministrative Law Judge found, that Respondent's ments or past practice to refuse to pay earned va- past practice during potential and actual strike ac- cation benefits. tivity shows a consistent policy based on its inter- It is readily apparent that, under the contracts, pretation of the effective collective-bargaining th employees were entitled to vacation pay and agreements. Our examination of the evidence, how- ever, fails to support that conclusion. ' It is not clear from the record whether the Union took part in formu- lating the 1974 arrangement with respect to vacation benefits, or whether As set forth in full by the Administrative Law Judge, we specifically Respondent unilaterally decided to pay accrued benefits and rescheduled note that the contractual management-rights clauses provided, inter alia, vacations. that the authority vested to the Company "will not be used for the pur- ' A small number of vacation checks covering vacations scheduled to pose of discrimination against any member of the Union." start on June 9 were erroneously distributed prior to the strike. 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is an established practice for Respondent to pay va- The pertinent evidence shows that, during a cation benefits on the Friday preceding the start of strike in 1974, Respondent's employees were paid the vacation period. their accrued vacation pay although they were re- In dismissing the complaint, the Administrative quired to take vacations following the strike.' In Law Judge found that Respondent did not unlaw- the present case, all vacation benefits were can- fully reschedule its employees' vacations, that it did celed for the duration of the strike. 10 In 1977, in re- so in accordance with past practice and the perti- sponse to the Union's threat to strike, Respondent nent provisions of the contracts, and that Respond- posted a notice stating that in the event of a strike ent, therefore, had legitimate business reasons for no vacation benefits would be paid and all vaca- rescheduling the vacations. Further, the Adminis- tions would be rescheduled, but no strike occurred, trative Law Judge found that the record contains and no vacation benefits were withheld or vaca- no evidence of union animus or hostility. tions canceled. Here, Respondent canceled vaca- Respondent contends that its decision to cancel tions and withheld vacation pay from employees scheduled vacations and withhold accrued vacation prior to the commencement of the strike and pay was based on business justification; i.e., its past before it could be determined that a strike actually practice and its belief that it had a contractual right was going to take place. The 1974 and 1977 in- to do so. 8 It asserts that, pursuant to those consid- stances encompass Respondent's history of past erations, it reached that decision (1) because it was not ontrctualy rquird topay acaton py in practice in strike-related situations, and they clearly not contractually required to pay vacation pay in j ^ Rsodn lieu of vacation; (2) because it did not know how f to e t pater c b Rsn t many employees would cross the picket line and, if Respondent further asserts as a business justifica- production continued during the strike, Respondent tio n t h a t an employee must be working in order to wanted to maximize the number of employees go on vacation and, because the employees were available to work; and (3) to provide periods of striking rather than working, it was permissible to rest and relaxation away from work from which it can ce l their vacations and withhold vacation bene- would benefit in terms of increased efficiency, and, fits. T his contention, however, is not supported by therefore, an employee must be working in order either its bargaining agreements or its past practice. to take a vacation. The General Counsel argues As noted, the contract is silent in this regard. that, but for the strike, the employees entitled Moreover, on June 6, before it knew who, if would have received vacation pay in accordance anyone, would participate in the called strike, Re- with the contracts and past practice, and that, spondent canceled vacations and withheld vacation under N.L.R.B v. Great Dane Trailers, Inc., 388 pay from employees who, but for the strike, would U.S. 26 (1967), Respondent's failure to pay vaca- have received their vacation benefits well before tion benefits when due was discriminatory and in- the start of the strike. In addition, the withholding herently destructive of employees' rights and viola- of such benefits from nonworking employees has tive of the Act, even in the absence of independent not, in fact, been Respondent's practice. The evidence of unlawful motive. Alternatively, the record shows instead that vacation benefits consist- General Counsel asserts that the employees had ently have been provided on a regular basis to em- satisfied all contractual requirements necessary to ployees on leave of absence and sick leave immedi- accrue and receive vacation benefits, and Respond- ately before the start of their scheduled vacations. ent's asserted business reasons for canceling bene- Thus, Respondent's asserted belief that it had a fits were pretextual and motivated by antiunion contractual right to withhold the benefits cannot considerations. withstand scrutiny. None of the contractual provisions relied on, in- It is immaterial, therefore, that Respondent was eluding the management-rights clauses, clearly or not contractually required to pay vacation pay in specifically authorizes the conduct in which Re- lieu of vacation. Rather, Respondent was not em- spondent engaged. Respondent claims, and the Ad- powered by either the collective-bargaining agree- ministrative Law Judge found, that Respondent's ments or past practice to refuse to pay earned va- past practice during potential and actual strike ac- cation benefits. tivity shows a consistent policy based on its inter- It is readily apparent that, under the contracts, pretation of the effective collective-bargaining th employees were entitled to vacation pay and agreements. Our examination of the evidence, how- ever, fails to support that conclusion. I It is not clear from the record whether the Union took part in fonnu- lating the 1974 arrangement with respect to vacation benefits, or whether *As set forth in full by the Administrative Law Judge, we specifically Respondent unilaterally decided to pay accrued benefits and rescheduled note that the contractual management-rights clauses provided, inter alia, vacations. that the authority vested to the Company "will not be used for the pur- 'O A small number of vacation checks covering vacations scheduled to pose of discrimination against any member of the Union." start on June 9 were erroneously distributed prior to the strike. 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is an established practice for Respondent to pay va- The pertinent evidence shows that, during a cation benefits on the Friday preceding the start of strike in 1974, Respondent's employees were paid the vacation period. their accrued vacation pay although they were re- In dismissing the complaint, the Administrative quired to take vacations following the strike.' In Law Judge found that Respondent did not unlaw- the present case, all vacation benefits were can- fully reschedule its employees' vacations, that it did celed for the duration of the strike. 10 In 1977, in re- so in accordance with past practice and the perti- sponse to the Union's threat to strike, Respondent nent provisions of the contracts, and that Respond- posted a notice stating that in the event of a strike ent, therefore, had legitimate business reasons for no vacation benefits would be paid and all vaca- rescheduling the vacations. Further, the Adminis- tions would be rescheduled, but no strike occurred, trative Law Judge found that the record contains and no vacation benefits were withheld or vaca- no evidence of union animus or hostility. tions canceled. Here, Respondent canceled vaca- Respondent contends that its decision to cancel tions and withheld vacation pay from employees scheduled vacations and withhold accrued vacation prior to the commencement of the strike and pay was based on business justification; i.e., its past before it could be determined that a strike actually practice and its belief that it had a contractual right was going to take place. The 1974 and 1977 in- to do so. 8 It asserts that, pursuant to those consid- stances encompass Respondent's history of past erations, it reached that decision (1) because it was not ontrctualy rquird topay acaton py in practice in strike-related situations, and they clearly not contractually required to pay vacation pay in j ^ Rsodn lieu of vacation; (2) because it did not know how f to e t pater c b Rsn t many employees would cross the picket line and, if Respondent further asserts as a business justifica- production continued during the strike, Respondent tio n th a t an employee must be working in order to wanted to maximize the number of employees go on vacation and, because the employees were available to work; and (3) to provide periods of striking rather than working, it was permissible to rest and relaxation away from work from which it can ce l th e ir vacations and withhold vacation bene- would benefit in terms of increased efficiency, and, fits. T his contention, however, is not supported by therefore, an employee must be working in order either its bargaining agreements or its past practice. to take a vacation. The General Counsel argues As noted, the contract is silent in this regard. that, but for the strike, the employees entitled Moreover, on June 6, before it knew who, if would have received vacation pay in accordance anyone, would participate in the called strike, Re- with the contracts and past practice, and that, spondent canceled vacations and withheld vacation under N.L.R.B v. Great Dane Trailers, Inc., 388 pay from employees who, but for the strike, would U.S. 26 (1967), Respondent's failure to pay vaca- have received their vacation benefits well before tion benefits when due was discriminatory and in- the start of the strike. In addition, the withholding herently destructive of employees' rights and viola- of such benefits from nonworking employees has tive of the Act, even in the absence of independent not, in fact, been Respondent's practice. The evidence of unlawful motive. Alternatively, the record shows instead that vacation benefits consist- General Counsel asserts that the employees had ently have been provided on a regular basis to em- satisfied all contractual requirements necessary to ployees on leave of absence and sick leave immedi- accrue and receive vacation benefits, and Respond- ately before the start of their scheduled vacations. ent's asserted business reasons for canceling bene- Thus, Respondent's asserted belief that it had a fits were pretextual and motivated by antiunion contractual right to withhold the benefits cannot considerations. withstand scrutiny. None of the contractual provisions relied on, in- It is immaterial, therefore, that Respondent was eluding the management-rights clauses, clearly or not contractually required to pay vacation pay in specifically authorizes the conduct in which Re- lieu of vacation. Rather, Respondent was not em- spondent engaged. Respondent claims, and the Ad- powered by either the collective-bargaining agree- ministrative Law Judge found, that Respondent's ments or past practice to refuse to pay earned va- past practice during potential and actual strike ac- cation benefits. tivity shows a consistent policy based on its inter- It is readily apparent that, under the contracts, pretation of the effective collective-bargaining th employees were entitled to vacation pay and agreements. Our examination of the evidence, how- ever, fails to support that conclusion. I It is not clear from the record whether the Union took part in fonnu- lating the 1974 arrangement with respect to vacation benefits, or whether *As set forth in full by the Administrative Law Judge, we specifically Respondent unilaterally decided to pay accrued benefits and rescheduled note that the contractual management-rights clauses provided, inter alia, vacations. that the authority vested to the Company "will not be used for the pur- 'O A small number of vacation checks covering vacations scheduled to pose of discrimination against any member of the Union." start on June 9 were erroneously distributed prior to the strike. 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is an established practice for Respondent to pay va- The pertinent evidence shows that, during a cation benefits on the Friday preceding the start of strike in 1974, Respondent's employees were paid the vacation period. their accrued vacation pay although they were re- In dismissing the complaint, the Administrative quired to take vacations following the strike.' In Law Judge found that Respondent did not unlaw- the present case, all vacation benefits were can- fully reschedule its employees' vacations, that it did celed for the duration of the strike. 10 In 1977, in re- so in accordance with past practice and the perti- sponse to the Union's threat to strike, Respondent nent provisions of the contracts, and that Respond- posted a notice stating that in the event of a strike ent, therefore, had legitimate business reasons for no vacation benefits would be paid and all vaca- rescheduling the vacations. Further, the Adminis- tions would be rescheduled, but no strike occurred, trative Law Judge found that the record contains and no vacation benefits were withheld or vaca- no evidence of union animus or hostility. tions canceled. Here, Respondent canceled vaca- Respondent contends that its decision to cancel tions and withheld vacation pay from employees scheduled vacations and withhold accrued vacation prior to the commencement of the strike and pay was based on business justification; i.e., its past before it could be determined that a strike actually practice and its belief that it had a contractual right was going to take place. The 1974 and 1977 in- to do so. 8 It asserts that, pursuant to those consid- stances encompass Respondent's history of past erations, it reached that decision (1) because it was not ontrctualy rquird topay acaton py in practice in strike-related situations, and they clearly not contractually required to pay vacation pay in j ^ Rsodn lieu of vacation; (2) because it did not know how f to e t pater c b Rsn t many employees would cross the picket line and, if Respondent further asserts as a business justifica- production continued during the strike, Respondent tio n th a t an employee must be working in order to wanted to maximize the number of employees go on vacation and, because the employees were available to work; and (3) to provide periods of striking rather than working, it was permissible to rest and relaxation away from work from which it can ce l th e ir vacations and withhold vacation bene- would benefit in terms of increased efficiency, and, fits. T his contention, however, is not supported by therefore, an employee must be working in order either its bargaining agreements or its past practice. to take a vacation. The General Counsel argues As noted, the contract is silent in this regard. that, but for the strike, the employees entitled Moreover, on June 6, before it knew who, if would have received vacation pay in accordance anyone, would participate in the called strike, Re- with the contracts and past practice, and that, spondent canceled vacations and withheld vacation under N.L.R.B v. Great Dane Trailers, Inc., 388 pay from employees who, but for the strike, would U.S. 26 (1967), Respondent's failure to pay vaca- have received their vacation benefits well before tion benefits when due was discriminatory and in- the start of the strike. In addition, the withholding herently destructive of employees' rights and viola- of such benefits from nonworking employees has tive of the Act, even in the absence of independent not, in fact, been Respondent's practice. The evidence of unlawful motive. Alternatively, the record shows instead that vacation benefits consist- General Counsel asserts that the employees had ently have been provided on a regular basis to em- satisfied all contractual requirements necessary to ployees on leave of absence and sick leave immedi- accrue and receive vacation benefits, and Respond- ately before the start of their scheduled vacations. ent's asserted business reasons for canceling bene- Thus, Respondent's asserted belief that it had a fits were pretextual and motivated by antiunion contractual right to withhold the benefits cannot considerations. withstand scrutiny. None of the contractual provisions relied on, in- It is immaterial, therefore, that Respondent was eluding the management-rights clauses, clearly or not contractually required to pay vacation pay in specifically authorizes the conduct in which Re- lieu of vacation. Rather, Respondent was not em- spondent engaged. Respondent claims, and the Ad- powered by either the collective-bargaining agree- ministrative Law Judge found, that Respondent's ments or past practice to refuse to pay earned va- past practice during potential and actual strike ac- cation benefits. tivity shows a consistent policy based on its inter- It is readily apparent that, under the contracts, pretation of the effective collective-bargaining th employees were entitled to vacation pay and agreements. Our examination of the evidence, how- ever, fails to support that conclusion. I It is not clear from the record whether the Union took part in fonnu- lating the 1974 arrangement with respect to vacation benefits, or whether *As set forth in full by the Administrative Law Judge, we specifically Respondent unilaterally decided to pay accrued benefits and rescheduled note that the contractual management-rights clauses provided, inter alia, vacations. that the authority vested to the Company "will not be used for the pur- 'O A small number of vacation checks covering vacations scheduled to pose of discrimination against any member of the Union." start on June 9 were erroneously distributed prior to the strike. STOKELY-VAN CAMP, INC. 963 that, pursuant to past practice, but for the strike ac- CONCLUSIONS OF LAW tivity, those entitled would have been able to take S C .their vacations and receive vacation pay on re- . Stokely-Van Camp, Inc., is, and has been at all times material herein, an employer engaged in com- quest. Accordingly, we find no merit in Respond- quest. Accordingly, we find no merit in Respond- merce within the meaning of Section 2(2), (6), and ent's contention that employees cannot be on strike m g ( ( and on vacation at the same time. There is no evi- (7) of the Act. dence here that Respondent had a contractual right 2. United Steelworkers of America Local No. 1473, is, and at all times material has been, a labor or other legitimate business justification for dictat- 1473, is, and at all tmes material has been a labor ing how time off from work should be spent. " Its organization within the meaning of Section 2(5) of in the Act. desire to maximize the number of employees availa- e ble for work during the strike does not give it the 3. By withholding and deferring payment to its right to penalize employees for choosing to exer- employees of their accrued vacation pay and can- cise their Section 7 right to strike, celing and rescheduling their earned vacations as The Administrative Law Judge found that the specified in the controlling collective-bargaining evidence fails to establish antiunion motivation. We agreements n effect between Respondent and the have found that the reasons advanced by Respond- Union, Respondent unilaterally changed the wages, ent are not supported by the record. Here, upon hours working conditions, and terms and condi- learning of the Union's intent to strike, and prior to tons of employment of its employees without ad- the start of the strike, Gary Miller, Respondent's ance notice and bargaining with the Union, and plant superintendent, told the Charging Party, Earl attempted to interfere with, restrain, or coerce and Martin, that it was the Union's fault that Martin retaliate gainst its employees for exercising their did not receive the vacation pay to which he was rights to engage in union and concerted activities entitled. By placing the onus on the Union for the in violation of Section 8(a)(), (3), and (5) of the withholding of vacation benefits, Respondent clear- Act. ly demonstrated that its actions were taken in re- 4. The aforesaid unfair labor practices affect taliation against the Union and to attempt to dis- commerce within the meaning of Section 2(6) and courage its employees from engaging in protected (7) f the Act concerted activity and striking. In addition, during THE REMEDY the strike, Respondent's employee relations man- ager told an employee that he would not receive Having found that Respondent engaged in, and is his vacation pay because Respondent decided that engaging in, certain unfair labor practices within he could not vacation and strike at the same time. 12 the meaning of Section 8(a)(l), (3), and (5) of the We find, therefore, contrary to the Administra- Act, we shall order Respondent to cease and desist tive Law Judge, that the reasons asserted by Re- therefrom. spondent in defense of its actions are pretextual or We shall also order Respondent to make the unlawful, and that Respondent's denial of earned strikers whole for any monetary loss resulting from vacations and vacation pay violated Section 8(a)(1) Respondent's unlawful action.' 5 But for Respond- and (3) of the Act. 3 We further find that, by uni- ent's unfair labor practices, employees whose vaca- laterally changing the terms and conditions of em- tions were scheduled during the strike would have ployment respecting vacation pay and vacations, received their vacation pay at that time and then Respondent also violated Section 8(a)(5) of the would have worked continuously after the strike, Act. 4 receiving their weekly wages. However, because of Respondent's unlawful conduct these employees " Cf. Borden. Inc.. Borden Chemical Division, 235 NLRB 982 (1978). were required to take their vacation after the ' In light of Respondent's demonstrated union animus, we find it un- strike, thereby depriving them of work time and necessary to determine whether or not Respondent would have violated the Act absent proof of antiunion motivation. N.LR.B. v. Great Dane accompany wages. Thus, by faiing to pay vacation Trailers, Inc., supra 1 Cf. Norman Mesnikoff, Receiver in Bankruptcy for Mid-State Broad- litigated and is closely related to the subject matter of the complaint, we casting Co., d/b/a WHLW, 248 NLRB 1206 (1980). hereby find that Respondent violated Sec. 8(aX5) by unilaterally cancel- '" See, generally, Wallace Metal Products, Inc, 244 NLRB 41 (1979); ing employee vacations and withholding and deferring payment of vaca- and Gulf Envelope Company, 256 NLRB 320 (1981). tion benefits even though such conduct was not alleged to be an unfair As noted earlier, the alleged violation of Sec. 8(aX5) was raised for the labor practice in the complaint. See, generally, Crown Zellerbach Corpora- first time by counsel for the General Counsel in her post-hearing brief to tion, 225 NLRB 911 (1976); and The Timken Company, 236 NLRB 757 the Administrative Law Judge. Upon a careful review of all the evi- (1978). dence, we are satisfied that the operative facts forming the basis for the '5 Backpay shall be computed with interest as prescribed in Florida violation are well established in the record. Credited testimony of Re- Steel Corporation, 231 NLRB 651 (1977). See, generally. Isis Plumbing A spondent's labor relations manager, Spurgeon, and employee relations Heating Co., 138 NLRB 716 (1962). In accordance with his partial dissent manager, Paulsen, clearly shows that Respondent did not confer with or in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins notify the Union about the cancellation of vacations and withholding of would award interest on the backpay due based on the formula set forth vacation pay. In light of this testimony and because the issue was fully therein. STOKELY-VAN CAMP, INC. 963 that, pursuant to past practice, but for the strike ac-CONCLUSIONS OF LAW tivity, those entitled would have been able to take T S Camp, I 11 their vacations and receive vacation pay on re- t Stely- ren , an e s. engas in com- quest. Accordingly, we find no merit in Respond- t l e aeilhria mlyreggdmcm ques. Acordngl, wefin no eri in espnd- merce within the meaning of Section 2(2), (6), and ent's contention that employees cannot be on strike "7) of the n Act and on vacation at the same time. There is no evi- ,7, 2 U e Sr of , dence here that Respondent had a contractual right 2 - u l e tewreso mrc oa o denc her tht Repondnt ad acontactal rght 1473, is, and at all times material has been, a labor or other legitimate business justification for dictat- orai a n wt hin t he m a nin of S e n 2 l5b o f ing how time off from work should be spent." Its .gamzation within the meaning of Section 2(5) of desire to maximize the number of employees availa- 3 B w o a ble for work during the strike does not give it the epoye withholding and deferring payment to its right to penalize employees for choosing to exer- employees of their accrued vacation pay and can- cise their Section 7 right to strike. c el cng an d rescheduling their earned vacations as The Administrative Law Judge found that the aspecified in the controlling collective-bargaining evidence fails to establish antiunion motivation. We agreements in effect between Respondent and the have found that the reasons advanced by Respond- un ro n, Respondent udlaterally changed the wages, ent are not supported by the record. Here, upon th ou rs working conditions, and terms and condi- learning of the Union's intent to strike, and prior to tvo ns o f employment of its employees without ad- the start of the strike, Gary Miller, Respondent's v an c e n ot lc e and bargaining with the Union, and plant superintendent, told the Charging Party, Earl rattempted to interfere with, restrain, or coerce and Martin, that it was the Union's fault that Martin r eta sate engage ints employees for exercising their did not receive the vacation pay to which he was "in8iol to en ^ of Set on and concerted activities entitled. By placing the onus on the Union for the n ation of Section 8(a)(l), (3), and (5) of the withholding of vacation benefits, Respondent clear- 4. Th a u l p affect ly demonstrated that its actions were taken in re- c4m T h e aforesaid unfair labor practices affect taliation against the Union and to attempt to dis-7commerce within the meaning of Section 2(6) and courage its employees from engaging in protected 7 / concerted activity and striking. In addition, during THE REMEDY the strike, Respondent's employee relations man- ager told an employee that he would not receive Having found that Respondent engaged in, and is his vacation pay because Respondent decided that engaging in, certain unfair labor practices within he could not vacation and strike at the same time. 12 th e meaning of Section 8(a)(l), (3), and (5) of the We find, therefore, contrary to the Administra- A c t , we shall order Respondent to cease and desist tive Law Judge, that the reasons asserted by Re- therefrom. spondent in defense of its actions are pretextual or We shall also order Respondent to make the unlawful, and that Respondent's denial of earned strikers whole for any monetary loss resulting from vacations and vacation pay violated Section 8(a)(l) Respondent's unlawful action. 1 But for Respond- and (3) of the Act. 13 We further find that, by uni- ent's unfair labor practices, employees whose vaca- laterally changing the terms and conditions of em- tions were scheduled during the strike would have ployment respecting vacation pay and vacations, received their vacation pay at that time and then Respondent also violated Section 8(a)(5) of the would have worked continuously after the strike, Act. 14 receiving their weekly wages. However, because of Respondent's unlawful conduct these employees " Cf. Borden. Inc.. Borden chemical Division, 235 NLRB 982 (1978). were required to take their vacation after the "In light of Respondent's demonstrated union animus, we find it un- strike, thereby depriving them of work time and necessary to determine whether or not Respondent would have violated ...- „„,- 'n. L, r :l;__ »„ p„. .,„„»;„- the Act absent proof of antiunion motivation. N.LR.B. v. Great Dane accompany wages. Thus, by failing to pay Vacation Trailers, Inc., supra 13 Cf. Norman Mesnikoff, Receiver in Bankruptcy for Mid-State Broad- litigated and is closely related to the subject matter of the complaint, we Casting Co., d/b/a WHLW, 248 NLRB 1206 (1980). hereby find that Respondent violated Sec. 8(a)(5) by unilaterally cancel- 1 See, generally, Wallace Metal Producs, Inc, 244 NLRB 41 (1979); ing employee vacations and withholding and deferring payment of vaca- and Gul/Envelope Company, 256 NLRB 320 (1981). tion benefits even though such conduct was not alleged to be in unfair As noted earlier, the alleged violation of Sec. 8(aX5) was raised for the labor practice in the complaint. See, generally, Crown Zellerbach Corpora- first time by counsel for the General Counsel in her post-hearing brief to tion, 225 NLRB 911 (1976); and The Timken Company, 236 NLRB 757 the Administrative Law Judge. Upon a careful review of all the evi- (1978). dence, we are satisfied that the operative facts forming the basis for the "1 Backpay shall be computed with interest as prescribed in Florida violation are well established in the record. Credited testimony of Re- Steel Corporation, 231 NLRB 651 (1977). See, generally. Isis Plumbing A spondent's labor relations manager, Spurgeon, and employee relations Healing Co., 138 NLRB 716 (1962). In accordance with his partial dissent manager, Paulsen, clearly shows that Respondent did not confer with or in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins notify the Union about the cancellation of vacations and withholding of would award interest on the backpay due based on the formula set forth vacation pay. In light of this testimony and because the issue was fully therein. STOKELY-VAN CAMP, INC. 963 that, pursuant to past practice, but for the strike ac-CONCLUSIONS OF LAW tivity, those entitled would have been able to take T S Camp, I 11 their vacations and receive vacation pay on re- t Stely- ren , an e s. engas in com- quest. Accordingly, we find no merit in Respond- t l e aeilhria mlyreggdmcm ques. Acordngl, wefin no eri in espnd- merce within the meaning of Section 2(2), (6), and ent's contention that employees cannot be on strike "7 of the n Act and on vacation at the same time. There is no evi- ,7, 2 U e Sr of , dence here that Respondent had a contractual right 2- u l e tewreso mrc oa o denc her tht Repondnt ad acontactal rght 1473, is, and at all times material has been, a labor or other legitimate business justification for dictat- orai a n wt hin t he m a nin of S e n 2 l5b o f ing how time off from work should be spent." Itsorganization within the meaning of Section 2(5) of desire to maximize the number of employees availa- 3 B w o a ble for work during the strike does not give it the epoye withholding and deferring payment to its right to penalize employees for choosing to exer- employees of their accrued vacation pay and can- cise their Section 7 right to strike. c el cng an d rescheduling their earned vacations as The Administrative Law Judge found that the aspecified in the controlling collective-bargaining evidence fails to establish antiunion motivation. We agreements in effect between Respondent and the have found that the reasons advanced by Respond- un ro n, Respondent udlaterally changed the wages, ent are not supported by the record. Here, upon th ou rs working conditions, and terms and condi- learning of the Union's intent to strike, and prior to tvo ns o f employment of its employees without ad- the start of the strike, Gary Miller, Respondent's v an c e n ot lc e and bargaining with the Union, and plant superintendent, told the Charging Party, Earl rattempted to interfere with, restrain, or coerce and Martin, that it was the Union's fault that Martin r eta sate engage ints employees for exercising their did not receive the vacation pay to which he was "in8iol to en ^ of Set on and concerted activities entitled. By placing the onus on the Union for the n ation of Section 8(a)(l), (3), and (5) of the withholding of vacation benefits, Respondent clear- 4. Th a u l p affect ly demonstrated that its actions were taken in re- c4m T h e aforesaid unfair labor practices affect taliation against the Union and to attempt to dis-7commerce within the meaning of Section 2(6) and courage its employees from engaging in protected 7 / concerted activity and striking. In addition, during THE REMEDY the strike, Respondent's employee relations man- ager told an employee that he would not receive Having found that Respondent engaged in, and is his vacation pay because Respondent decided that engaging in, certain unfair labor practices within he could not vacation and strike at the same time. 12 th e meaning of Section 8(a)(l), (3), and (5) of the We find, therefore, contrary to the Administra- A c t , we shall order Respondent to cease and desist tive Law Judge, that the reasons asserted by Re- therefrom. spondent in defense of its actions are pretextual or We shall also order Respondent to make the unlawful, and that Respondent's denial of earned strikers whole for any monetary loss resulting from vacations and vacation pay violated Section 8(a)(l) Respondent's unlawful action. 1 But for Respond- and (3) of the Act.' 3 We further find that, by uni- ent's unfair labor practices, employees whose vaca- laterally changing the terms and conditions of em- tions were scheduled during the strike would have ployment respecting vacation pay and vacations, received their vacation pay at that time and then Respondent also violated Section 8(a)(5) of the would have worked continuously after the strike, Act. 14 receiving their weekly wages. However, because of Respondent's unlawful conduct these employees " cf. Borden. Inc.. Borden chemical Division, 235 NLRB 982 (1978). were required to take their vacation after the "In light of Respondent's demonstrated union animus, we find it un- strike, thereby depriving them of work time and necessary to determine whether or not Respondent would have violated ...- „„,- 'n. L, r :l;__ »„ p„. .,„„»;„- the Act absent proof of antiunion motivation. N.LR.B. v. Great Dane accompany wages. Thus, by failing to pay Vacation Trailers, Inc., supra 13 Cf. Norman Mesnikoff, Receiver in Bankruptcy for Mid-State Broad- litigated and is closely related to the subject matter of the complaint, we casting Co., d/b/a WHLW, 248 NLRB 1206 (1980). hereby find that Respondent violated Sec. 8(a)(5) by unilaterally cancel- 1 See, generally, Wallace Metal Producs, Inc, 244 NLRB 41 (1979); ing employee vacations and withholding and deferring payment of vaca- and Gul/Envelope Company, 256 NLRB 320 (1981). tion benefits even though such conduct was not alleged to be in unfair As noted earlier, the alleged violation of Sec. 8(aX5) was raised for the labor practice in the complaint. See, generally, Crown Zellerbach Corpora- first time by counsel for the General Counsel in her post-hearing brief to tion, 225 NLRB 911 (1976); and The Timken Company, 236 NLRB 757 the Administrative Law Judge. Upon a careful review of all the evi- (1978). dence, we are satisfied that the operative facts forming the basis for the "1 Backpay shall be computed with interest as prescribed in Florida violation are well established in the record. Credited testimony of Re- Steel Corporation, 231 NLRB 651 (1977). See, generally. Isis Plumbing A spondent's labor relations manager, Spurgeon, and employee relations Healing Co., 138 NLRB 716 (1962). In accordance with his partial dissent manager, Paulsen, clearly shows that Respondent did not confer with or in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins notify the Union about the cancellation of vacations and withholding of would award interest on the backpay due based on the formula set forth vacation pay. In light of this testimony and because the issue was fully therein. STOKELY-VAN CAMP, INC. 963 that, pursuant to past practice, but for the strike ac-CONCLUSIONS OF LAW tivity, those entitled would have been able to take T S Camp, I 11 their vacations and receive vacation pay on re- t Stely- ren , an e s. engas in com- quest. Accordingly, we find no merit in Respond- t l e aeilhria mlyreggdmcm ques. Acordngl, wefin no eri in espnd- merce within the meaning of Section 2(2), (6), and ent's contention that employees cannot be on strike "7 of the n Act and on vacation at the same time. There is no evi- ,7, 2 U e Sr of , dence here that Respondent had a contractual right 2- u l e tewreso mrc oa o denc her tht Repondnt ad acontactal rght 1473, is, and at all times material has been, a labor or other legitimate business justification for dictat- orai a n wt hin t he m a nin of S e n 2 l5b o f ing how time off from work should be spent." Itsorganization within the meaning of Section 2(5) of desire to maximize the number of employees availa- 3 B w o a ble for work during the strike does not give it the epoye withholding and deferring payment to its right to penalize employees for choosing to exer- employees of their accrued vacation pay and can- cise their Section 7 right to strike. c el cng an d rescheduling their earned vacations as The Administrative Law Judge found that the aspecified in the controlling collective-bargaining evidence fails to establish antiunion motivation. We agreements in effect between Respondent and the have found that the reasons advanced by Respond- un ro n, Respondent udlaterally changed the wages, ent are not supported by the record. Here, upon th ou rs working conditions, and terms and condi- learning of the Union's intent to strike, and prior to tvo ns o f employment of its employees without ad- the start of the strike, Gary Miller, Respondent's v an c e n ot lc e and bargaining with the Union, and plant superintendent, told the Charging Party, Earl rattempted to interfere with, restrain, or coerce and Martin, that it was the Union's fault that Martin r eta sate engage ints employees for exercising their did not receive the vacation pay to which he was "in8iol to en ^ of Set on and concerted activities entitled. By placing the onus on the Union for the n ation of Section 8(a)(l), (3), and (5) of the withholding of vacation benefits, Respondent clear- 4. Th a u l p affect ly demonstrated that its actions were taken in re- c4m T h e aforesaid unfair labor practices affect taliation against the Union and to attempt to dis-7commerce within the meaning of Section 2(6) and courage its employees from engaging in protected 7 / concerted activity and striking. In addition, during THE REMEDY the strike, Respondent's employee relations man- ager told an employee that he would not receive Having found that Respondent engaged in, and is his vacation pay because Respondent decided that engaging in, certain unfair labor practices within he could not vacation and strike at the same time. 12 th e meaning of Section 8(a)(l), (3), and (5) of the We find, therefore, contrary to the Administra- Act, we shall order Respondent to cease and desist tive Law Judge, that the reasons asserted by Re- therefrom. spondent in defense of its actions are pretextual or We shall also order Respondent to make the unlawful, and that Respondent's denial of earned strikers whole for any monetary loss resulting from vacations and vacation pay violated Section 8(a)(l) Respondent's unlawful action. 1 But for Respond- and (3) of the Act. 13 We further find that, by uni- ent's unfair labor practices, employees whose vaca- laterally changing the terms and conditions of em- tions were scheduled during the strike would have ployment respecting vacation pay and vacations, received their vacation pay at that time and then Respondent also violated Section 8(a)(5) of the would have worked continuously after the strike, Act. 14 receiving their weekly wages. However, because of Respondent's unlawful conduct these employees " cf. Borden. Inc.. Borden chemical Division, 235 NLRB 982 (1978). were required to take their vacation after the "In light of Respondent's demonstrated union animus, we find it un- strike, thereby depriving them of work time and necessary to determine whether or not Respondent would have violated ...- „„,- 'n. L, r :l;__ »„ p„. .,„„»;„- the Act absent proof of antiunion motivation. N.LR.B. v. Great Dane accompany wages. Thus, by failing to pay Vacation Trailers, Inc., supra 13 Cf. Norman Mesnikoff, Receiver in Bankruptcy for Mid-State Broad- litigated and is closely related to the subject matter of the complaint, we casting Co., d/b/a WHLW, 248 NLRB 1206 (1980). hereby find that Respondent violated Sec. 8(a)(5) by unilaterally cancel- 1 See, generally, Wallace Metal Producs, Inc, 244 NLRB 41 (1979); ing employee vacations and withholding and deferring payment of vaca- and Gul/Envelope Company, 256 NLRB 320 (1981). tion benefits even though such conduct was not alleged to be in unfair As noted earlier, the alleged violation of Sec. 8(aX5) was raised for the labor practice in the complaint. See, generally, Crown Zellerbach Corpora- first time by counsel for the General Counsel in her post-hearing brief to tion, 225 NLRB 911 (1976); and The Timken Company, 236 NLRB 757 the Administrative Law Judge. Upon a careful review of all the evi- (1978). dence, we are satisfied that the operative facts forming the basis for the "1 Backpay shall be computed with interest as prescribed in Florida violation are well established in the record. Credited testimony of Re- Steel Corporation, 231 NLRB 651 (1977). See, generally. Isis Plumbing A spondent's labor relations manager, Spurgeon, and employee relations Healing Co., 138 NLRB 716 (1962). In accordance with his partial dissent manager, Paulsen, clearly shows that Respondent did not confer with or in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins notify the Union about the cancellation of vacations and withholding of would award interest on the backpay due based on the formula set forth vacation pay. In light of this testimony and because the issue was fully therein. 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefits when payment was due, and by requiring changes in wages, hours, or working conditions of employees to take time off following the strike the said employees. when they would ordinarily have been working, (d) Post at its Indianapolis, Indiana, facility the employees suffered a monetary loss equal to the copies of the attached notice marked "Appen- amount they should have received at the time their dix."' 7 Copies of said notice, on forms provided by vacation pay was denied them.'6 the Regional Director for Region 25, after being ~~~ORDER ~cduly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt Pursuant to Section 10(c) of the National Labor thereof, and be maintained by it for 60 consecutive Relations Act, as amended, the National Labor Re- days thereafter, in conspicuous places, including all lations Board hereby orders that the Respondent, places where notices to employees are customarily Stokely-Van Camp, Inc., Indianapolis, Indiana, its posted. Reasonable steps shall be taken by Re- officers, agents, successors, and assigns, shall: spondent to insure that said notices are not altered, 1. Cease and desist from: defaced, or covered by any other material. (a) Discouraging membership in Local Union (e) Notify the Regional Director for Region 25, No. 1473, United Steelworkers of America, or any in writing, within 20 days from the date of this other labor organization, by discriminating against Order, what steps Respondent has taken to comply its employees by withholding and deferring pay- herewith. ment of accrued vacation pay and canceling and rescheduling vacations because they engaged in or In the event that this Order is enforced by a Judgment of a United were about to engage in protected concerted activ- States Court of Appeals, the words in the notice reading "Posted by were about o engage in protected concv Ordere of the National Labor Relations Board" shall read "Posted Pursu- ity. ant to a Judgment of the United States Court of Appeals Enforcing and (b) Unilaterally canceling scheduled vacations Order of the National Labor Relations Board." and requiring that all vacations be rescheduled, without notice to or consultation with the Union. APPENDIX (c) In any like or related manner interfering NOTICE TO EMPLOYEES with, restraining, or coercing employees in the ex-OTIE OEE ercise of their right to self-organization, to form,POSTED BY ORDER OF TE join, or assist the above-named or any other labor NATIONAL LABOR RELATIONS BOARD organization, to bargain collectively through repre- An Agency of the United States Government sentatives of their own choosing, and to engage in other concerted activities for the purposes of col- After a hearing at which all sides had an opportu- lective bargaining or other mutual aid or protec- nity to present evidence and state their positions, tion, or to refrain from any and all such activities. the National Labor Relations Board found that we 2. Take the following affirmative action which have violated the National Labor Relations Act, as the Board finds will effectuate the policies of the amended, and has ordered us to post this notice. Act: The Act gives employees the following rights: (a) Make whole, with interest, all striking em- ployees for any loss of wages and/or vacation pay To engage in self-organization they may have suffered as a result of Respondent's To form, join, or assist any union failure to pay vacation benefits as provided in the To bargain collectively through repre- effective collective-bargaining agreements. Back- sentatives of their own choice pay and interest thereon shall be computed in the To engage in activities together for the manner prescribed in the remedy herein. purpose of collective bargaining or other (b) Preserve and, upon request, make available to mutual aid or protection the Board or its agents, for examination and copy- To refrain from the exercise of any or all ing, all payroll records, social security payment such activities. records, timecards, personnel records and reports, WE WILL NOT discriminate against employ- and all other records necessary to analyze the discourage membership amount of backpay due under the terms of this o nin No. 1473, United Steelworkers of Local Union No. 1473, United Steelworkers of r Notify and bargain with the aforesaid UnionAmerica, or any other labor organization, by (c) Notify and bargain with the aforesaid Union (c) * *' °, ,. .... i_ .withholding and deferring payment of accrued as bargaining representative of its employees in the vacation pay and canceling and rescheduling vacation pay and canceling and rescheduling appropriate bargaining unit regarding any proposed vacations because they engaged in or were vacations because they engaged in or were '' See, generally, Westinghouse Electric Corporation, 237 NLRB 1209 about to engage in protected concerted activi- (1978). ty. 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefits when payment was due, and by requiring changes in wages, hours, or working conditions of employees to take time off following the strike the said employees. when they would ordinarily have been working, (d) Post at its Indianapolis, Indiana, facility the employees suffered a monetary loss equal to the copies of the attached notice marked "Appen- amount they should have received at the time their dix." 17 Copies of said notice, on forms provided by vacation pay was denied them."f the Regional Director for Region 25, after being ORDERnduly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt Pursuant to Section 10(c) of the National Labor thereof, and be maintained by it for 60 consecutive Relations Act, as amended, the National Labor Re- days thereafter, in conspicuous places, including all lations Board hereby orders that the Respondent, places where notices to employees are customarily Stokely-Van Camp, Inc., Indianapolis, Indiana, its posted. Reasonable steps shall be taken by Re- officers, agents, successors, and assigns, shall: spondent to insure that said notices are not altered, 1. Cease and desist from: defaced, or covered by any other material. (a) Discouraging membership in Local Union (e) Notify the Regional Director for Region 25, No. 1473, United Steelworkers of America, or any in writing, within 20 days from the date of this other labor organization, by discriminating against Order, what steps Respondent has taken to comply its employees by withholding and deferring pay- herewith. ment of accrued vacation pay and canceling and rescheduling vacations because they engaged in or " In the event that this Order is enforced by a Judgment of a United were about to engage in protected concerted activ- SStat s Court of Appea's, the words in the notice reading "Posted by were about to engage in protected concerted activ- Order of the National Labor Relations Board" shall read "Posted Pursu- ity. ant to a Judgment of the United States Court of Appeals Enforcing and (b) Unilaterally Canceling scheduled vacations Order of the National Labor Relations Board." and requiring that all vacations be rescheduled, without notice to or consultation with the Union. APPENDIX (c) In any like or related manner interferingN C E with, restraining, or coercing employees in the ex-POTE O OFETH ercise of their right to self-organization, to form, P OST ED BY O RD ER OF T HE join, or assist the above-named or any other labor NATIONAL LABOR RELATIONS BOARD organization, to bargain collectively through repre- An Agency of the United States Government sentatives of their own choosing, and to engage in other concerted activities for the purposes of col- After a hearing at which all sides had an opportu- lective bargaining or other mutual aid or protec- nity to present evidence and state their positions, tion, or to refrain from any and all such activities. the National Labor Relations Board found that we 2. Take the following affirmative action which have violated the National Labor Relations Act, as the Board finds will effectuate the policies of the amended, and has ordered us to post this notice. Act: The Act gives employees the following rights: (a) Make whole, with interest, all striking em- ployees for any loss of wages and/or vacation pay T o engage in self-organization they may have suffered as a result of Respondent's To form, join, or assist any union failure to pay vacation benefits as provided in the To bargain collectively through repre- effective collective-bargaining agreements. Back- sentatives of their own choice pay and interest thereon shall be computed in the To engage in activities together for the manner prescribed in the remedy herein. purpose of collective bargaining or other (b) Preserve and, upon request, make available to mutual aid or protection the Board or its agents, for examination and copy- To refrain from the exercise of any or all ing, all payroll records, social security payment such activities. records, timecards, personnel records and reports, WE WILL NOT discriminate against employ- and all other records necessary to analyze the e i o discourage membership i amount of backpay due under the terms of this L U No. 1473, United Steelworkers of Order. ~~~~~~~~~~~America, or any other labor organization, by (c) Notify and bargain with the aforesaid Union w ithh o l a nd ode e r p a ymn of accrued " . .' °, ,. ,... i . ,,~~withholding and deferring payment of accrued as bargaining representative of its employees in theva p a c an ing B., 6 '.. ., .i- A ~~~~vacation pay and canceling and rescheduling appropriate bargaining unit regarding any proposed io ege i o - * ° " ° ° - ' *~~~~vacations because they engaged in or were ** See, generally, Westinghouse Electric Corporation, 237 NLRB 1209 about to engage in protected Concerted activi- (1978). ty. 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefits when payment was due, and by requiring changes in wages, hours, or working conditions of employees to take time off following the strike the said employees. when they would ordinarily have been working, (d) Post at its Indianapolis, Indiana, facility the employees suffered a monetary loss equal to the copies of the attached notice marked "Appen- amount they should have received at the time their dix." 17 Copies of said notice, on forms provided by vacation pay was denied them."f the Regional Director for Region 25, after being ORDERnduly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt Pursuant to Section 10(c) of the National Labor thereof, and be maintained by it for 60 consecutive Relations Act, as amended, the National Labor Re- days thereafter, in conspicuous places, including all lations Board hereby orders that the Respondent, places where notices to employees are customarily Stokely-Van Camp, Inc., Indianapolis, Indiana, its posted. Reasonable steps shall be taken by Re- officers, agents, successors, and assigns, shall: spondent to insure that said notices are not altered, 1. Cease and desist from: defaced, or covered by any other material. (a) Discouraging membership in Local Union (e) Notify the Regional Director for Region 25, No. 1473, United Steelworkers of America, or any in writing, within 20 days from the date of this other labor organization, by discriminating against Order, what steps Respondent has taken to comply its employees by withholding and deferring pay- herewith. ment of accrued vacation pay and canceling and rescheduling vacations because they engaged in or " In the event that this Order is enforced by a Judgment of a United were about to engage in protected concerted activ- SStat s Court of Appea's, the words in the notice reading "Posted by were about to engage in protected concerted activ- Order of the National Labor Relations Board" shall read "Posted Pursu- ity. ant to a Judgment of the United States Court of Appeals Enforcing and (b) Unilaterally Canceling scheduled vacations Order of the National Labor Relations Board." and requiring that all vacations be rescheduled, without notice to or consultation with the Union. APPENDIX (c) In any like or related manner interferingN C E with, restraining, or coercing employees in the ex-NOTE O OFETH ercise of their right to self-organization, to form, P OST ED BY O RD ER OF T HE join, or assist the above-named or any other labor NATIONAL LABOR RELATIONS BOARD organization, to bargain collectively through repre- An Agency of the United States Government sentatives of their own choosing, and to engage in other concerted activities for the purposes of col- After a hearing at which all sides had an opportu- lective bargaining or other mutual aid or protec- nity to present evidence and state their positions, tion, or to refrain from any and all such activities. the National Labor Relations Board found that we 2. Take the following affirmative action which have violated the National Labor Relations Act, as the Board finds will effectuate the policies of the amended, and has ordered us to post this notice. Act: The Act gives employees the following rights: (a) Make whole, with interest, all striking em- ployees for any loss of wages and/or vacation pay T o engage in self-organization they may have suffered as a result of Respondent's To form, join, or assist any union failure to pay vacation benefits as provided in the To bargain collectively through repre- effective collective-bargaining agreements. Back- sentatives of their own choice pay and interest thereon shall be computed in the To engage in activities together for the manner prescribed in the remedy herein. purpose of collective bargaining or other (b) Preserve and, upon request, make available to mutual aid or protection the Board or its agents, for examination and copy- To refrain from the exercise of any or all ing, all payroll records, social security payment such activities. records, timecards, personnel records and reports, WE WILL NOT discriminate against employ- and all other records necessary to analyze the e i o discourage membership i amount of backpay due under the terms of this L U No. 1473, United Steelworkers of Order. ~~~~~~~~~~~America, or any other labor organization, by (c) Notify and bargain with the aforesaid Union w ithh o l a nd ode e r p a ymn of accrued " . .' °, ,. ,... i . ,,~~withholding and deferring payment of accrued as bargaining representative of its employees in theva p a c an ing B., 6 '.. ., A- A ~~~~~vacation pay and canceling and rescheduling appropriate bargaining unit regarding any proposed io ege i o - * ° " ° ° - ' *~~~~vacations because they engaged in or were ** See, generally, Westinghouse Electric Corporation, 237 NLRB 1209 about to engage in protected Concerted activi- (1978). ty. 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefits when payment was due, and by requiring changes in wages, hours, or working conditions of employees to take time off following the strike the said employees. when they would ordinarily have been working, (d) Post at its Indianapolis, Indiana, facility the employees suffered a monetary loss equal to the copies of the attached notice marked "Appen- amount they should have received at the time their dix." 17 Copies of said notice, on forms provided by vacation pay was denied them."f the Regional Director for Region 25, after being ORDERnduly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt Pursuant to Section 10(c) of the National Labor thereof, and be maintained by it for 60 consecutive Relations Act, as amended, the National Labor Re- days thereafter, in conspicuous places, including all lations Board hereby orders that the Respondent, places where notices to employees are customarily Stokely-Van Camp, Inc., Indianapolis, Indiana, its posted. Reasonable steps shall be taken by Re- officers, agents, successors, and assigns, shall: spondent to insure that said notices are not altered, 1. Cease and desist from: defaced, or covered by any other material. (a) Discouraging membership in Local Union (e) Notify the Regional Director for Region 25, No. 1473, United Steelworkers of America, or any in writing, within 20 days from the date of this other labor organization, by discriminating against Order, what steps Respondent has taken to comply its employees by withholding and deferring pay- herewith. ment of accrued vacation pay and canceling and rescheduling vacations because they engaged in or " In the event that this Order is enforced by a Judgment of a United were about to engage in protected concerted activ- SStat s Court of Appea's, the words in the notice reading "Posted by were about to engage in protected concerted activ- Order of the National Labor Relations Board" shall read "Posted Pursu- ity. ant to a Judgment of the United States Court of Appeals Enforcing and (b) Unilaterally Canceling scheduled vacations Order of the National Labor Relations Board." and requiring that all vacations be rescheduled, without notice to or consultation with the Union. APPENDIX (c) In any like or related manner interferingN C E with, restraining, or coercing employees in the ex-NOTE O OFETH ercise of their right to self-organization, to form, P OST ED BY O RD ER OF T HE join, or assist the above-named or any other labor NATIONAL LABOR RELATIONS BOARD organization, to bargain collectively through repre- An Agency of the United States Government sentatives of their own choosing, and to engage in other concerted activities for the purposes of col- After a hearing at which all sides had an opportu- lective bargaining or other mutual aid or protec- nity to present evidence and state their positions, tion, or to refrain from any and all such activities. the National Labor Relations Board found that we 2. Take the following affirmative action which have violated the National Labor Relations Act, as the Board finds will effectuate the policies of the amended, and has ordered us to post this notice. Act: The Act gives employees the following rights: (a) Make whole, with interest, all striking em- ployees for any loss of wages and/or vacation pay T o engage in self-organization they may have suffered as a result of Respondent's To form, join, or assist any union failure to pay vacation benefits as provided in the To bargain collectively through repre- effective collective-bargaining agreements. Back- sentatives of their own choice pay and interest thereon shall be computed in the To engage in activities together for the manner prescribed in the remedy herein. purpose of collective bargaining or other (b) Preserve and, upon request, make available to mutual aid or protection the Board or its agents, for examination and copy- To refrain from the exercise of any or all ing, all payroll records, social security payment such activities. records, timecards, personnel records and reports, WE WILL NOT discriminate against employ- and all other records necessary to analyze the e i o discourage membership i amount of backpay due under the terms of this L U No. 1473, United Steelworkers of Order. ~~~~~~~~~~~America, or any other labor organization, by (c) Notify and bargain with the aforesaid Union w ithh o l a nd ode e r p a ymn of accrued " . .' °, ,. ,... i . ,,~~withholding and deferring payment of accrued as bargaining representative of its employees in theva p a c an ing B., 6 '.. ., A- A ~~~~~vacation pay and canceling and rescheduling appropriate bargaining unit regarding any proposed io ege i o - * ° " ° ° - ' *~~~~vacations because they engaged in or were ** See, generally, Westinghouse Electric Corporation, 237 NLRB 1209 about to engage in protected Concerted activi- (1978). ty. STOKELY-VAN CAMP, INC. 965 WE WILL NOT unilaterally cancel scheduled FINDINGS OF FACT vacations and require that all vacations be re- i. JURISDICTION scheduled without first giving notice to and bargaining with the Union. Respondent, an Indiana corporation, maintains its prin- WE WILL NOT in any like or related manner cipal office and place of business, a can manufacturing interfere with, restrain, or coerce employees in plant and a food processing plant, at Indianapolis. nterfere wth restrain, or coerce employees n During the 12-month period ending June 30, 1980, Re- the exercise of their right to self-organization, spondent (1) sold and shipped from its Indianapolis facili- to form, join, or assist the above-named or any ties products, goods, and materials valued in excess of other labor organization, to bargain collective- $50,000 directly to points outside Indiana, and (2) pur- ly through representatives of their own choos- chased, transferred, and delivered to its facilities goods ing, and to engage in other concerted activities and materials valued in excess of S50,000 which were for the purposes of collective bargaining or transported to said facilities directly from States other other mutual aid or protection, or to refrain Respondent admits, and I find, that it is an employer from any and all such activities. engaged in commerce within the meaning of Section WE WILL make whole, with interest, all 2(2), (6), and (7) of the Act. striking employees for any loss of wages Respondent admits, and I find, that the involved and/or vacation pay they may have suffered as Union, United Steelworkers of America, Local No. 1473, a result of our failure to pay their vacation is, and has been at all times material herein, a labor orga- .benefits as provided in the effective col - nization within the meaning of Section 2(5) of the Act. benefits as provided in the effective collective- bargaining agreements. 1I. THE ALLEGED UNFAIR LABOR PRACTICES WE WILL notify and bargain with the Union The issue here is whether Respondent unlawfully re- regarding any proposed changes in wages, scheduled its employees' vacations because of their union hours, or working conditions of our employ- activity.3 ees. Respondent has had collective-bargaining relations with the Union at the involved plants since at least STOKELY-VAN CAMP, INC. 1971.4 As here pertinent, Respondent and the Union had 3-year collective-bargaining agreements for each of the DECISION above-described plants, which period ended June 6. The Union notified Respondent, at a negotiation session on STATEMENT OF THE CASE June 4, that both plants' employees would be on strike as of midnight June 6. The strike lasted until new contracts JOHN H. WEST, Administrative Law Judge: This case were ratified on August 23 and the employees returned was heard at Indianapolis, Indiana, on February 9, 1981, to work on August 25. At no time during the strike were pursuant to a charge filed on June 12, 1980, and a com- any bargaining unit employees doing bargaining unit plaint which was issued on July 18, 1980, as amended on work for the Company. 5 Certain employees at the proc- January 30, 1981. The complaint alleges that the Re- essing plant who were scheduled to begin their regular spondent, Stokely-Van Camp, Inc., violated Section vacations on June 9 received their vacation checks on 8(a)(l) and (3) of the National Labor Relations Act, as June 6. Other specified employees at both plants who amended (the Act), in that it withheld from its employee had company-approved s scheduled vacations to begin on Earl Martin and other of its employees vacation pay in order to discourage employees from engaging in concert- I The General Counsel, on brief, also contends that the instant case ed activities for the purpose of collective bargaining or presents another issue; namely, did Respondent, as more fully described infra, unilaterally change the working conditions of its employees with- other mutual aid or protection and engaging in a strike. out giving notice to the Union and an opportunity to bargain over Re- A timely answer was filed by Respondent on July 29, spondent's conduct. 1980.' The Union is the exclusive bargaining representative of the hourly the r d,2 i g te d r of te w- paid production, maintenance, and warehouse employees at the plants. Upon the record, including the demeanor of the wit- , Supervisory personnel operated the can manufacturing plant during nesses, and after due consideration of the briefs filed by the strike. The plant manager. James Davis, witnessed pickets threatening the General Counsel and Respondent, I hereby make the truckdrivers and damage (hole in the cab and a shattered windshield) in- flicted on a truck by a gunblast. He, himself, escorted trucks from the following: plant until they were outside Indianapolis. As found by the Superior Court of Marion County, Indiana, in Stokely-Van Camp, Inc. v. United Steelworkers of America, AFL-CIO. and Local Union No. 1473, el al, Cause No. 5780 0931, a temporary restraining order dated July 23, 1980, numerous acts of violence occurred during the strike and such violence intimidated and prevented employees who desired to continue to work All dates are in 1980 unless indicated otherwise. for Respondent from entering Respondent's facilities. (Resp. Exh. 3. See 'Respondent moves to correct p. 181 of the transcript, and, in support also Resp. Exhs. 4 and 5.) of its motion, it submits an affidavit of someone who was present in the ' Approval was given prior to June 4. Respondent's practice is to have hearing room and heard the testimony in question. The affiant's recollec- employees fill out a vacation request form (i.e., G.C. Exh. 2). Company tion is correct. The motion is granted and it, with the attached affidavit, approval is either indicated on the form or by the Respondent's failure to is received in evidence as Resp. Exh. 13. deny the written request. STOKELY-VAN CAMP, INC. 965 WE WILL NOT unilaterally cancel scheduled FINDINGS OF FACT vacations and require that all vacations be re- .,,, .. ',. .. . , ~~~~~~~~~~I. JURISDICTION scheduled without first giving notice to and bargaining with the Union. Respondent, an Indiana corporation, maintains its prin- WE WILL NOT in any like or related manner cipal o ffic e and place o f b us i nes s, a can manufacturing interfere with, restrain , or coerceemployeesin plant and a food processing plant, at Indianapolis. interfere with, restrain, or coerce employees in During the 12-month period ending June 30, 1980, Re- the exercise of their right to self-organization, spondent (1) sold and shipped from its Indianapolis facili- to form, join, or assist the above-named or any ties products, goods, and materials valued in excess of other labor organization, to bargain collective- $50,000 directly to points outside Indiana, and (2) pur- ly through representatives of their own choos- chased, transferred, and delivered to its facilities goods ing, and to engage in other concerted activities an d materials valued in excess of $50,000 which were for the purposes of collective bargaining or transported to sai d facilities directly from State other other mutual aid or protection, or to refrain Respondent admits, and I find, that it is an employer from any and all such activities. engaged in commerce within the meaning of Section WE WILL make whole, with interest, all 2(2), (6), and (7) of the Act. striking employees for any loss of wages Respondent admits, and I find, that the involved and/or vacation pay they may have suffered as U n io n , Un it ed Steelworkers of America, Local No. 1473, a result of our failure to pay their vacation is, an d h as b e en at a ll t im es m at er ial h e rein, a lab o r orga- benefits as provided in the effective collective- nization within the meaning of Section 2(5) of the Act. benefits as provided in the effective collective- bargaining agreements. 11. THE ALLEGED UNFAIR LABOR PRACTICES WE WILL notify and bargain with the Union The issue here is whether Respondent unlawfully re- regarding any proposed changes in wages, scheduled its employees' vacations because of their union hours, or working conditions of our employ- activity.3 ees. Respondent has had collective-bargaining relations with the Union at the involved plants since at least STOKELY-VAN CAMP, INC. 1971.1 As here pertinent, Respondent and the Union had 3-year collective-bargaining agreements for each of the DECISION above-described plants, which period ended June 6. The Union notified Respondent, at a negotiation session on STATEMENT OF THE CASE June 4, that both plants' employees would be on strike as of midnight June 6. The strike lasted until new contracts JOHN H. WEST, Administrative Law Judge: This case were ratified on August 23 and the employees returned was heard at Indianapolis, Indiana, on February 9, 1981, to work on August 25. At no time during the strike were pursuant to a charge filed on June 12, 1980, and a com- any bargaining unit employees doing bargaining unit plaint which was issued on July 18, 1980, as amended on work for the Company. 5 Certain employees at the proc- January 30, 1981. The complaint alleges that the Re- essing plant who were scheduled to begin their regular spondent, Stokely-Van Camp, Inc., violated Section vacations on June 9 received their vacation checks on 8(a)(l) and (3) of the National Labor Relations Act, as June 6. Other specified employees at both plants who amended (the Act), in that it withheld from its employee had company-approved" scheduled vacations to begin on Earl Martin and other of its employees vacation pay in order to discourage employees from engaging in concert- I The General Counsel, on brief, also contends that the instant case ed activities for the purpose of collective bargaining or Presents another issue; namely, did Respondent, as more fully described infra, unilaterally change the working conditions of its employees with- other mutual aid Or protection and engaging in a Strike. out giving notice to the Union and an opportunity to bargain over Re- A timely answer was filed by Respondent on July 29, spondent's conduct. 1980.' 4 The Union is the exclusive bargaining representative of the hourly paid production, maintenance, and warehouse employees at the plants. Upon the record,' including the demeanor of the Wit- , Supervisory personnel operated the can manufacturing plant during nesses, and after due consideration of the briefs filed by the strike. The plant manager, James Davis, witnessed pickets threatening the General Counsel and Respondent, I hereby make the truckdrivers and damage (hole in the cab and a shattered windshield) in- flicted on a truck by a gunblast. He, himself, escorted trucks from the following: plant until they were outside Indianapolis. As found by the Superior Court of Marion County, Indiana, in Stokely-Van Camp, Inc. v. United Sleelworkers of America, AFL-CIO. and Local Union No. 14713 el aL, Cause No. 5780 0931, a temporary restraining order dated July 23, 1980, numerous acts of violence occurred during the strike and such violence intimidated and prevented employees who desired to continue to work 'All dates are in 1980 unless indicated otherwise. for Respondent from entering Respondent's facilities. (Resp. Exh. 3. See 'Respondent moves to correct p. 181 of the transcript, and, in support also Resp. Exhs. 4 and 5.) of its motion, it submits an affidavit of someone who was present in the I Approval was given prior to June 4. Respondent's practice is to have hearing room and heard the testimony in question. The affiant's recollec- employees fill out a vacation request form (i.e., G.C. Exh. 2). Company tion is correct. The motion is granted and it, with the attached affidavit, approval is either indicated on the form or by the Respondent's failure to is received in evidence as Resp. Exh. 13. deny the written request. STOKELY-VAN CAMP, INC. 965 WE WILL NOT unilaterally cancel scheduled FINDINGS OF FACT vacations and require that all vacations be re- .,,, .. ',. .. . , ~~~~~~~~~~I. JURISDICTION scheduled without first giving notice to and bargaining with the Union. Respondent, an Indiana corporation, maintains its prin- WE WILL NOT in any like or related manner cipal o ffic e and place o f b us i nes s, a can manufacturing interfere with, restrain , or coerceemployeesin plant and a food processing plant, at Indianapolis. interfere with, restrain, or coerce employees in During the 12-month period ending June 30, 1980, Re- the exercise of their right to self-organization, spondent (1) sold and shipped from its Indianapolis facili- to form, join, or assist the above-named or any ties products, goods, and materials valued in excess of other labor organization, to bargain collective- $50,000 directly to points outside Indiana, and (2) pur- ly through representatives of their own choos- chased, transferred, and delivered to its facilities goods ing, and to engage in other concerted activities an d materials valued in excess of $50,000 which were for the purposes of collective bargaining or transported to said faci li ti es d ir ec t ly fr om Stata s o t h e r other mutual aid or protection, or to refrain Respondent admits, and I find, that it is an employer from any and all such activities. engaged in commerce within the meaning of Section WE WILL make whole, with interest, all 2(2), (6), and (7) of the Act. striking employees for any loss of wages Respondent admits, and I find, that the involved and/or vacation pay they may have suffered as U n io n , Un it ed Steelworkers of America, Local No. 1473, a result of our failure to pay their vacation is, an d h as b e en at a ll t im es m at er ial herein, a lab o r orga- benefits as provided in the effective collective- nization within the meaning of Section 2(5) of the Act. benefits as provided in the effective collective- bargaining agreements. 11. THE ALLEGED UNFAIR LABOR PRACTICES WE WILL notify and bargain with the Union The issue here is whether Respondent unlawfully re- regarding any proposed changes in wages, scheduled its employees' vacations because of their union hours, or working conditions of our employ- activity.3 ees. Respondent has had collective-bargaining relations with the Union at the involved plants since at least STOKELY-VAN CAMP, INC. 1971.1 As here pertinent, Respondent and the Union had 3-year collective-bargaining agreements for each of the DECISION above-described plants, which period ended June 6. The Union notified Respondent, at a negotiation session on STATEMENT OF THE CASE June 4, that both plants' employees would be on strike as of midnight June 6. The strike lasted until new contracts JOHN H. WEST, Administrative Law Judge: This case were ratified on August 23 and the employees returned was heard at Indianapolis, Indiana, on February 9, 1981, to work on August 25. At no time during the strike were pursuant to a charge filed on June 12, 1980, and a com- any bargaining unit employees doing bargaining unit plaint which was issued on July 18, 1980, as amended on work for the Company. 5 Certain employees at the proc- January 30, 1981. The complaint alleges that the Re- essing plant who were scheduled to begin their regular spondent, Stokely-Van Camp, Inc., violated Section vacations on June 9 received their vacation checks on 8(a)(l) and (3) of the National Labor Relations Act, as June 6. Other specified employees at both plants who amended (the Act), in that it withheld from its employee had company-approved" scheduled vacations to begin on Earl Martin and other of its employees vacation pay in order to discourage employees from engaging in concert- I The General Counsel, on brief, also contends that the instant case ed activities for the purpose of collective bargaining or Presents another issue; namely, did Respondent, as more fully described infra, unilaterally change the working conditions of its employees with- other mutual aid Or protection and engaging in a Strike. out giving notice to the Union and an opportunity to bargain over Re- A timely answer was filed by Respondent on July 29, spondent's conduct. 1980.' 4 The Union is the exclusive bargaining representative of the hourly paid production, maintenance, and warehouse employees at the plants. Upon the record,' including the demeanor of the Wit- , Supervisory personnel operated the can manufacturing plant during nesses, and after due consideration of the briefs filed by the strike. The plant manager, James Davis, witnessed pickets threatening the General Counsel and Respondent, I hereby make the truckdrivers and damage (hole in the cab and a shattered windshield) in- flicted on a truck by a gunblast. He, himself, escorted trucks from the following: plant until they were outside Indianapolis. As found by the Superior Court of Marion County, Indiana, in Stokely-Van Camp, Inc. v. United Sleelworkers of America, AFL-CIO. and Local Union No. 14713 el aL, Cause No. 5780 0931, a temporary restraining order dated July 23, 1980, numerous acts of violence occurred during the strike and such violence intimidated and prevented employees who desired to continue to work 'All dates are in 1980 unless indicated otherwise. for Respondent from entering Respondent's facilities. (Resp. Exh. 3. See 'Respondent moves to correct p. 181 of the transcript, and, in support also Resp. Exhs. 4 and 5.) of its motion, it submits an affidavit of someone who was present in the I Approval was given prior to June 4. Respondent's practice is to have hearing room and heard the testimony in question. The affiant's recollec- employees fill out a vacation request form (i.e., G.C. Exh. 2). Company tion is correct. The motion is granted and it, with the attached affidavit, approval is either indicated on the form or by the Respondent's failure to is received in evidence as Resp. Exh. 13. deny the written request. STOKELY-VAN CAMP, INC. 965 WE WILL NOT unilaterally cancel scheduled FINDINGS OF FACT vacations and require that all vacations be re- .,,, .. ',. .. . , ~~~~~~~~~~I. JURISDICTION scheduled without first giving notice to and bargaining with the Union. Respondent, an Indiana corporation, maintains its prin- WE WILL NOT in any like or related manner cipal o ffic e and place o f b us i nes s, a can manufacturing interfere with, restrain , or coerceemployeesin plant and a food processing plant, at Indianapolis. interfere with, restrain, or coerce employees in During the 12-month period ending June 30, 1980, Re- the exercise of their right to self-organization, spondent (1) sold and shipped from its Indianapolis facili- to form, join, or assist the above-named or any ties products, goods, and materials valued in excess of other labor organization, to bargain collective- $50,000 directly to points outside Indiana, and (2) pur- ly through representatives of their own choos- chased, transferred, and delivered to its facilities goods ing, and to engage in other concerted activities an d materials valued in excess of $50,000 which were for the purposes of collective bargaining or transported to said faci li ti es d ir ec t ly fr om Stata s o t h e r other mutual aid or protection, or to refrain Respondent admits, and I find, that it is an employer from any and all such activities. engaged in commerce within the meaning of Section WE WILL make whole, with interest, all 2(2), (6), and (7) of the Act. striking employees for any loss of wages Respondent admits, and I find, that the involved and/or vacation pay they may have suffered as U n io n , Un it ed Steelworkers of America, Local No. 1473, a result of our failure to pay their vacation is, an d h as b e en at a ll t im es m at er ial herein, a lab o r orga- benefits as provided in the effective collective- nization within the meaning of Section 2(5) of the Act. benefits as provided in the effective collective- bargaining agreements. 11. THE ALLEGED UNFAIR LABOR PRACTICES WE WILL notify and bargain with the Union The issue here is whether Respondent unlawfully re- regarding any proposed changes in wages, scheduled its employees' vacations because of their union hours, or working conditions of our employ- activity.3 ees. Respondent has had collective-bargaining relations with the Union at the involved plants since at least STOKELY-VAN CAMP, INC. 1971.1 As here pertinent, Respondent and the Union had 3-year collective-bargaining agreements for each of the DECISION above-described plants, which period ended June 6. The Union notified Respondent, at a negotiation session on STATEMENT OF THE CASE June 4, that both plants' employees would be on strike as of midnight June 6. The strike lasted until new contracts JOHN H. WEST, Administrative Law Judge: This case were ratified on August 23 and the employees returned was heard at Indianapolis, Indiana, on February 9, 1981, to work on August 25. At no time during the strike were pursuant to a charge filed on June 12, 1980, and a com- any bargaining unit employees doing bargaining unit plaint which was issued on July 18, 1980, as amended on work for the Company. 5 Certain employees at the proc- January 30, 1981. The complaint alleges that the Re- essing plant who were scheduled to begin their regular spondent, Stokely-Van Camp, Inc., violated Section vacations on June 9 received their vacation checks on 8(a)(l) and (3) of the National Labor Relations Act, as June 6. Other specified employees at both plants who amended (the Act), in that it withheld from its employee had company-approved" scheduled vacations to begin on Earl Martin and other of its employees vacation pay in order to discourage employees from engaging in concert- I The General Counsel, on brief, also contends that the instant case ed activities for the purpose of collective bargaining or Presents another issue; namely, did Respondent, as more fully described infra, unilaterally change the working conditions of its employees with- other mutual aid Or protection and engaging in a Strike. out giving notice to the Union and an opportunity to bargain over Re- A timely answer was filed by Respondent on July 29, spondent's conduct. 1980.' 4 The Union is the exclusive bargaining representative of the hourly paid production, maintenance, and warehouse employees at the plants. Upon the record,' including the demeanor of the Wit- , Supervisory personnel operated the can manufacturing plant during nesses, and after due consideration of the briefs filed by the strike. The plant manager, James Davis, witnessed pickets threatening the General Counsel and Respondent, I hereby make the truckdrivers and damage (hole in the cab and a shattered windshield) in- flicted on a truck by a gunblast. He, himself, escorted trucks from the following: plant until they were outside Indianapolis. As found by the Superior Court of Marion County, Indiana, in Stokely-Van Camp, Inc. v. United Sleelworkers of America, AFL-CIO. and Local Union No. 14713 el aL, Cause No. 5780 0931, a temporary restraining order dated July 23, 1980, numerous acts of violence occurred during the strike and such violence intimidated and prevented employees who desired to continue to work 'All dates are in 1980 unless indicated otherwise. for Respondent from entering Respondent's facilities. (Resp. Exh. 3. See 'Respondent moves to correct p. 181 of the transcript, and, in support also Resp. Exhs. 4 and 5.) of its motion, it submits an affidavit of someone who was present in the I Approval was given prior to June 4. Respondent's practice is to have hearing room and heard the testimony in question. The affiant's recollec- employees fill out a vacation request form (i.e., G.C. Exh. 2). Company tion is correct. The motion is granted and it, with the attached affidavit, approval is either indicated on the form or by the Respondent's failure to is received in evidence as Resp. Exh. 13. deny the written request. 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD various dates from June 9 to August 25 did not receive work stoppage is in effect, must re-schedule their vacation pay from Respondent during the strike. 7 vacation at a later date. The pertinent portions of the agreements are set forth If there is no work stoppage, all employees in the appendix hereto. [Omitted from publication.] Brief- scheduled to go on vacation on Monday, June 6, ly, both required Respondent to pay vacation benefits to 1977 may pick up their vacation checks on Monday, employees who complied with specified conditions. The June 6, 1977 after 9:00 AM." agreement which covered the can manufacturing plant After it was notified by the Union on June 4 of the contains the following provision:upcoming strike, Respondent decided to reschedule vaca- Vacations may, as far as possible, be scheduled by tions so that they would be taken after the strike ended. employees, upon sixty (60) day advance notice, ac- The basis stated at the hearing by Respondent's labor re- cording to seniority with mutual agreement of the lations manager, James Spurgeon, for his decision was employee and the Company. [Jt. Exh. 2, p. 15, par. that (1) he believed Respondent had the contractual right 12.13.] to reschedule vacations pursuant to provision 12.13 of both agreements, 12 as described above, and the manage- The similar provision in the processing plant agreement ment-rights clause, which speaks to the direction of the reads: work force and Respondent's right to designate produc- Vacations may, as far as possible, be scheduled by tion schedules,"3 (2) he did not know whether all of the the employees, according to seniority with the employees would honor the strike and, if production mutual agreement of the employee and the Compa- continued during the strike, Respondent wanted as many ny. [Jt. Exh. 1, p. 15, par. 12.13.] 9 employees available as possible, and (3) he believed that Regarding past practices, it is noted that during the vacations should be taken from work and if employees strike at these plants in 1974, which occurred subsequent are on a strike they are not working. Respondent did not to the termination of prior agreements which are said to notify the Union of its decision prior to implementing be basically similar to the involved agreements, Respond- it ent issued vacation checks and required employees to About 3 weeks before the involved strike, Larry take time off after the strike ended; that in 1977 Re- Martin, then an employee in the processing plant, asked spondent posted the following notice in its can manufac- Lester Paulsen, the employee relations manager at that turing plant: facility, what would happen to his pay for his vacation which was to begin June 16 if there was a strike. Paulsen ATTENTION ALL HOURLY EMPLOYEES stated that Respondent would "probably mail it to you e to te Un . . p n like before, but that's all I can tell you right now." Larry Due to the Union's position that the company can Martin understood "like before" to refer to the 1974 no longer hire summer vacation replacements on a strik temporary employee basis after June 3, 1977, the strke. temporary employee basis after June 3, 1977, the On Friday, June 6, Earl Martin, then an employee in company will no longer be able to extend to our employees the number of vacations during the the can manufacturing plant, received his paycheck at employees the number of vacations during the summer months as we have in the past. The compa- ny regrets having to take this action, but under the Resp. Eh. 2. This notice was also signed by Howard E. inters. at an Reference is also made by Respondent to certain of its conduct at an- circumstances we have no alternative. Any employ- other of its Indiana facilities in 1978 and 1979 at which it had a collec- ee affected will be notified by their foreman of the tive-bargaining agreement with the Union involved herein. The agree- necessity to re-schedule their vacation.0 ment is said to have been substantially similar to those involved herein. Respondent rescheduled for after a strike employee vacations which had It also posted the following notice in its can manufactur- been scheduled during the strike. The agreement itself was never intro- ing plant: duced herein. 2 Specific instances of Respondent rescheduling previously approved ATTENTION ALL EMPLOYEES individual vacations were cited by Respondent; i.e., Resp. Exhs. 7 and 12. These reschedulings were based on Respondent's production needs. In the event of a work stoppage at Plant #063, " Art. V-Management Rights, in both of the involved agreements (Jt. there will be no payment of vacation benefits. All Exhs. 2 and 3), reads as follows: employees scheduled to go on vacation while the The management of the Plant and the direction of the working forces, including the right to hire, suspend or discharge for just cause, or transfer, enlarge or combine, divide, decrease, or rearrange Involved are approximately 17 processing plant employees and 65 can departments, and the right to relieve employees from duty because plant employees. of lack of work or other legitimate reasons, designate the type of ' Essentially, benefits accrued under both agreements to those unit product to be manufactured, where it will be manufactured, produc- members who had been employed for a full year or more and who tion schedules and methods, processes and means of manufacturing worked a minimum of 150 days within the anniversary year in which the are vested exclusively in the Company, provided this will not be vacation was earned. used for purpose of discrimination against any member of the Union or be contrary to any other provision of this agreement. ' Both agreements also state "[e]mployees entitled to vacation shall re- In answering a union inquiry made after Respondent refused to give ceive their vacation pay at the beginning of their vacation period," and out regular vacation paychecks on June 6 Spurgeon advised the Union "[v]acation pay is based on the straight time hourly day rate in effect on that employees were not going to lose their vacations but would have the date vacation is taken" (Jt. Exhs. I and 2, p. 15 in both agreements, at them rescheduled when the strike ended. Spurgeon told the union repre- pars. 12.14 and 12.15, respectively). Normally employees receive their sentative that he did not believe that Respondent could "schedule some- regular vacation check on the payday before their vacation begins body for vacation, from time off work when they're not working." The '1 Resp. Exh. II. The notice was dated May 26, 1977, and was signed union representative did not demand on behalf of the Union that Re- by Howard E. Winters, plant manager. spondent give vacation pay to the strikers. 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD various dates from June 9 to August 25 did not receive work stoppage is in effect, must re-schedule their vacation pay from Respondent during the strike. 7 vacation at a later date. The pertinent portions of the agreements are set forth If there is no work stoppage, all employees in the appendix hereto. [Omitted from publication.] Brief- scheduled to go on vacation on Monday, June 6, ly, both required Respondent to pay vacation benefits to 1977 may pick up their vacation checks on Monday, employees who complied with specified conditions. 8 The June 6, 1977 after 9:00 AM." agreement which covered the can manufacturing plant After it was notified by the Union on June 4 of the contains the following provision: upcoming strike, Respondent decided to reschedule vaca- Vacations may, as far as possible, be scheduled by tions so that they would be taken after the strike ended. employees, upon sixty (60) day advance notice, ac- The basis stated at the hearing by Respondent's labor re- cording to seniority with mutual agreement of the lations manager, James Spurgeon, for his decision was employee and the Company. [Jt. Exh. 2, p. 15, par. that (1) he believed Respondent had the contractual right 12.13.] to reschedule vacations pursuant to provision 12.13 of both agreements, 12 as described above, and the manage- The similar provision in the processing plant agreement ment-rights clause, which speaks to the direction of the re ads: work force and Respondent's right to designate produc- Vacations may, as far as possible, be scheduled by tion schedules," (2) he did not know whether all of the the employees, according to seniority with the employees would honor the strike and, if production mutual agreement of the employee and the Compa- continued during the strike, Respondent wanted as many ny. [Jt. Exh. 1, p. 15, par. 12.13.] 9 employees available as possible, and (3) he believed that Regarding past practices, it is noted that during the vacations should be taken from work and if employees strike at these plants in 1974, which occurred subsequent a r e o n a strike they are not working. Respondent did not to the termination of prior agreements which are said to notify t h e Uni o n o f it s decisi o n prior t o implementing be basically similar to the involved agreements, Respond- 1it ent issued vacation checks and required employees to A b o u t 3 w e e k s b e fo r e t h e involved strike, Larry take time off after the strike ended; that in 1977 Re- Martin, t h e n an employee in the processing plant, asked spondent posted the following notice in its can manufac- L e s t e r Paulsen, the employee relations manager at that turing plant: facility, what would happen to his pay for his vacation which was to begin June 16 if there was a strike. Paulsen ATTENTION ALL HOURLY EMPLOYEES stated that Respondent would "probably mail it to you Due to the Union's position that the company can like before, but that's all I can tell you right now." Larry Due to the Union s position that the company can Mati understood "like before" to refer to the 1974 no longer hire summer vacation replacements on a M n" fet. temporary employee basis after June 3, 1977, the n Friday, June 6, Earl Martin, then an employee in company will no longer be able to extend to our OnFrd manufacturing plant, received his paycheck at employees the number of vacations during the th c m p summer months as we have in the past. The compa-------- ny regrets having to take this action, but under the ^Refereece is also made by Respondent to certain of its conduct at an- Circumstances we have no alternative. Any employ- other of its Indiana facilities in 1978 and 1979 at which it had a collec- ee affected will be notified by their foreman of the tive-bargaining agreement with the Union involved herein. The agree- necessity to re-schedule their vacation. 10 m en t is said to h av e bee n substantially similar to those involved herein. Respondent rescheduled for after a strike employee vacations which had It also posted the following notice in its can manufactur- been scheduled during the strike. The agreement itself was never intro- ing plant: duced herein. "1 Specific instances of Respondent rescheduling previously approved ATTENTION ALL EMPLOYEES individual vacations were cited by Respondent; i.e., Resp. Exhs. 7 and 12. These reschedulings were based on Respondent's production needs. In the event of a work Stoppage at Plant #063, " Art. V-Management Rights, in both of the involved agreements (Jt. there will be no payment of vacation benefits. All Exhs. 2 an d 3), r ead s as follo w s: employes schduled o go o vacaton whie the The management of the Plant and the direction of the working employees scheduled to go on vacation while the"forces, including the fight to hire, suspend or discharge for just cause, or transfer, enlarge or combine, divide, decrease, or rearrange 7 Involved are approximately 17 processing plant employees and 65 can departments, and the right to relieve employees from duty because plant employees. of lack of work or other legitimate reasons, designate the type of I Essentially, benefits accrued under both agreements to those unit p r od u c t to b e man uf a c t ured, w he re it will be manufactured, produc- members who had been employed for a full year or more and who ti o n schedules and methods, processes and means of manufacturing worked a minimum of 150 days within the anniversary year in which the ar e v es t e d exclusively in the Company, provided this will not be vacation was earned. u s ed for purpose of discrimination against any member of the Union or be contrary to any other provision of this agreement. * Both agreements also state "[e]mployees entitled to vacation shall re- In answering a union inquiry made after Respondent refused to give ceive their vacation pay at the beginning of their vacation period," and out regular vacation paychecks on June 6. Spurgeon advised the Union "[vMacation pay is based on the straight time hourly day rate in effect on that employees were not going to lose their vacations but would have the date vacation is taken" (Jt. Exhs. Iland 2, p. 15 in both agreements, at them rescheduled when the strike ended. Spurgeon told the union repre- pars. 12.14 and 12.15, respectively). Normally employees receive their sentative that he did not believe that Respondent could "schedule some- regular vacation check on the payday before their vacation begins, body for vacation, from time off work when they're not working." The 10 Resp. Exh. I1. The notice was dated May 26, 1977, and was signed union representative did not demand on behalf of the Union that Re- by Howard E. Winters, plant manager. spondent give vacation pay to the strikers. 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD various dates from June 9 to August 25 did not receive work stoppage is in effect, must re-schedule their vacation pay from Respondent during the strike. 7 vacation at a later date. The pertinent portions of the agreements are set forth If there is no work stoppage, all employees in the appendix hereto. [Omitted from publication.] Brief- scheduled to go on vacation on Monday, June 6, ly, both required Respondent to pay vacation benefits to 1977 may pick up their vacation checks on Monday, employees who complied with specified conditions. 8 The June 6, 1977 after 9:00 AM." agreement which covered the can manufacturing plant After it was notified by the Union on June 4 of the contains the following provision: upcoming strike, Respondent decided to reschedule vaca- Vacations may, as far as possible, be scheduled by tions so that they would be taken after the strike ended. employees, upon sixty (60) day advance notice, ac- The basis stated at the hearing by Respondent's labor re- cording to seniority with mutual agreement of the lations manager, James Spurgeon, for his decision was employee and the Company. [Jt. Exh. 2, p. 15, par. that (1) he believed Respondent had the contractual right 12.13.] to reschedule vacations pursuant to provision 12.13 of both agreements,' 2 as described above, and the manage- The similar provision in the processing plant agreement ment-rights clause, which speaks to the direction of the re ads: work force and Respondent's right to designate produc- Vacations may, as far as possible, be scheduled by tion schedules," (2) he did not know whether all of the the employees, according to seniority with the employees would honor the strike and, if production mutual agreement of the employee and the Compa- continued during the strike, Respondent wanted as many ny. [Jt. Exh. 1, p. 15, par. 12.13.] 9 employees available as possible, and (3) he believed that Regarding past practices, it is noted that during the vacations should be taken from work and if employees strike at these plants in 1974, which occurred subsequent a r e o n a strike they are not working. Respondent did not to the termination of prior agreements which are said to notify t h e Uni o n o f it s decisi o n prior t o implementing be basically similar to the involved agreements, Respond- 1it ent issued vacation checks and required employees to A b o u t 3 w e e k s b e fo re t h e involved strike, Larry take time off after the strike ended; that in 1977 Re- Martin, t h e n an employee in the processing plant, asked spondent posted the following notice in its can manufac- L e s t e r Paulsen, the employee relations manager at that turing plant: facility, what would happen to his pay for his vacation which was to begin June 16 if there was a strike. Paulsen ATTENTION ALL HOURLY EMPLOYEES stated that Respondent would "probably mail it to you Due to the Union's position that the company can like before, but that's all I can tell you right now." Larry Due to the Union s position that the company can Mati understood "like before" to refer to the 1974 no longer hire summer vacation replacements on a M n" fet. temporary employee basis after June 3, 1977, the n Friday, June 6, Earl Martin, then an employee in company will no longer be able to extend to our OnFrd manufacturing plant, received his paycheck at employees the number of vacations during the th c m p summer months as we have in the past. The compa-------- ny regrets having to take this action, but under the ^Refereece is also made by Respondent to certain of its conduct at an- Circumstances we have no alternative. Any employ- other of its Indiana facilities in 1978 and 1979 at which it had a collec- ee affected will be notified by their foreman of the tive-bargaining agreement with the Union involved herein. The agree- necessity to re-schedule their vacation. 10 m en t is said to h av e bee n substantially similar to those involved herein. Respondent rescheduled for after a strike employee vacations which had It also posted the following notice in its can manufactur- been scheduled during the strike. The agreement itself was never intro- ing plant: duced herein. "1 Specific instances of Respondent rescheduling previously approved ATTENTION ALL EMPLOYEES individual vacations were cited by Respondent; i.e., Resp. Exhs. 7 and 12. These reschedulings were based on Respondent's production needs. In the event of a work Stoppage at Plant #063, " Art. V-Management Rights, in both of the involved agreements (Jt. there will be no payment of vacation benefits. All Exhs. 2 an d 3), r ead s as follo w s: employes schduled o go o vacaton whie the The management of the Plant and the direction of the working employees scheduled to go on vacation while the"forces, including the fight to hire, suspend or discharge for just cause, or transfer, enlarge or combine, divide, decrease, or rearrange 7 Involved are approximately 17 processing plant employees and 65 can departments, and the right to relieve employees from duty because plant employees. of lack of work or other legitimate reasons, designate the type of I Essentially, benefits accrued under both agreements to those unit p r od u c t to b e man uf a c t ured, w he re it will be manufactured, produc- members who had been employed for a full year or more and who ti o n schedules and methods, processes and means of manufacturing worked a minimum of 150 days within the anniversary year in which the ar e v es t e d exclusively in the Company, provided this will not be vacation was earned. u s ed for purpose of discrimination against any member of the Union or be contrary to any other provision of this agreement. * Both agreements also state "[e]mployees entitled to vacation shall re- In answering a union inquiry made after Respondent refused to give ceive their vacation pay at the beginning of their vacation period," and out regular vacation paychecks on June 6. Spurgeon advised the Union "[vMacation pay is based on the straight time hourly day rate in effect on that employees were not going to lose their vacations but would have the date vacation is taken" (Jt. Exhs. Iland 2, p. 15 in both agreements, at them rescheduled when the strike ended. Spurgeon told the union repre- pars. 12.14 and 12.15, respectively). Normally employees receive their sentative that he did not believe that Respondent could "schedule some- regular vacation check on the payday before their vacation begins, body for vacation, from time off work when they're not working." The 10 Resp. Exh. I1. The notice was dated May 26, 1977, and was signed union representative did not demand on behalf of the Union that Re- by Howard E. Winters, plant manager. spondent give vacation pay to the strikers. 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD various dates from June 9 to August 25 did not receive work stoppage is in effect, must re-schedule their vacation pay from Respondent during the strike. 7 vacation at a later date. The pertinent portions of the agreements are set forth If there is no work stoppage, all employees in the appendix hereto. [Omitted from publication.] Brief- scheduled to go on vacation on Monday, June 6, ly, both required Respondent to pay vacation benefits to 1977 may pick up their vacation checks on Monday, employees who complied with specified conditions. 8 The June 6, 1977 after 9:00 AM." agreement which covered the can manufacturing plant After it was notified by the Union on June 4 of the contains the following provision: upcoming strike, Respondent decided to reschedule vaca- Vacations may, as far as possible, be scheduled by tions so that they would be taken after the strike ended. employees, upon sixty (60) day advance notice, ac- The basis stated at the hearing by Respondent's labor re- cording to seniority with mutual agreement of the lations manager, James Spurgeon, for his decision was employee and the Company. [Jt. Exh. 2, p. 15, par. that (1) he believed Respondent had the contractual right 12.13.] to reschedule vacations pursuant to provision 12.13 of both agreements, 12 as described above, and the manage- The similar provision in the processing plant agreement ment-rights clause, which speaks to the direction of the re ads: work force and Respondent's right to designate produc- Vacations may, as far as possible, be scheduled by tion schedules," (2) he did not know whether all of the the employees, according to seniority with the employees would honor the strike and, if production mutual agreement of the employee and the Compa- continued during the strike, Respondent wanted as many ny. [Jt. Exh. 1, p. 15, par. 12.13.] 9 employees available as possible, and (3) he believed that Regarding past practices, it is noted that during the vacations should be taken from work and if employees strike at these plants in 1974, which occurred subsequent a r e o n a strike they are not working. Respondent did not to the termination of prior agreements which are said to notify t h e Uni o n o f it s decisi o n prior t o implementing be basically similar to the involved agreements, Respond- 1it ent issued vacation checks and required employees to A b o u t 3 w e e k s b e fo re t h e involved strike, Larry take time off after the strike ended; that in 1977 Re- Martin, t h e n an employee in the processing plant, asked spondent posted the following notice in its can manufac- L e s t e r Paulsen, the employee relations manager at that turing plant: facility, what would happen to his pay for his vacation which was to begin June 16 if there was a strike. Paulsen ATTENTION ALL HOURLY EMPLOYEES stated that Respondent would "probably mail it to you Due to the Union's position that the company can like before, but that's all I can tell you right now." Larry Due to the Union s position that the company can Mati understood "like before" to refer to the 1974 no longer hire summer vacation replacements on a M n" fet. temporary employee basis after June 3, 1977, the n Friday, June 6, Earl Martin, then an employee in company will no longer be able to extend to our OnFrd manufacturing plant, received his paycheck at employees the number of vacations during the th c m p summer months as we have in the past. The compa-------- ny regrets having to take this action, but under the ^Refereece is also made by Respondent to certain of its conduct at an- Circumstances we have no alternative. Any employ- other of its Indiana facilities in 1978 and 1979 at which it had a collec- ee affected will be notified by their foreman of the tive-bargaining agreement with the Union involved herein. The agree- necessity to re-schedule their vacation. 10 m en t is said to h av e bee n substantially similar to those involved herein. Respondent rescheduled for after a strike employee vacations which had It also posted the following notice in its can manufactur- been scheduled during the strike. The agreement itself was never intro- ing plant: duced herein. "1 Specific instances of Respondent rescheduling previously approved ATTENTION ALL EMPLOYEES individual vacations were cited by Respondent; i.e., Resp. Exhs. 7 and 12. These reschedulings were based on Respondent's production needs. In the event of a work Stoppage at Plant #063, " Art. V-Management Rights, in both of the involved agreements (Jt. there will be no payment of vacation benefits. All Exhs. 2 an d 3), r ead s as follo w s: employes schduled o go o vacaton whie the The management of the Plant and the direction of the working employees scheduled to go on vacation while the"forces, including the fight to hire, suspend or discharge for just cause, or transfer, enlarge or combine, divide, decrease, or rearrange 7 Involved are approximately 17 processing plant employees and 65 can departments, and the right to relieve employees from duty because plant employees. of lack of work or other legitimate reasons, designate the type of I Essentially, benefits accrued under both agreements to those unit p r od u c t to b e man uf a c t ured, w he re it will be manufactured, produc- members who had been employed for a full year or more and who ti o n schedules and methods, processes and means of manufacturing worked a minimum of 150 days within the anniversary year in which the ar e v es t e d exclusively in the Company, provided this will not be vacation was earned. u s ed for purpose of discrimination against any member of the Union or be contrary to any other provision of this agreement. * Both agreements also state "[e]mployees entitled to vacation shall re- In answering a union inquiry made after Respondent refused to give ceive their vacation pay at the beginning of their vacation period," and out regular vacation paychecks on June 6. Spurgeon advised the Union "[vMacation pay is based on the straight time hourly day rate in effect on that employees were not going to lose their vacations but would have the date vacation is taken" (Jt. Exhs. Iland 2, p. 15 in both agreements, at them rescheduled when the strike ended. Spurgeon told the union repre- pars. 12.14 and 12.15, respectively). Normally employees receive their sentative that he did not believe that Respondent could "schedule some- regular vacation check on the payday before their vacation begins, body for vacation, from time off work when they're not working." The 10 Resp. Exh. I1. The notice was dated May 26, 1977, and was signed union representative did not demand on behalf of the Union that Re- by Howard E. Winters, plant manager. spondent give vacation pay to the strikers. STOKELY-VAN CAMP, INC. 967 the beginning of the day shift. He did not, however, re- ent's conduct is "inherently destructive" of employees' ceive a check for his regular vacation which had been rights and, therefore, no independent proof of illegal approved (G. C. Exh. 2) and which was supposed to motive is required and no proof of business justification begin on Monday, June 9. In the company of a union is adequate to defend the violation. It is asserted by the representative, Joe Eddington, Earl Martin spoke with General Counsel that, even if the conduct is not "inher- the plant superintendent, Gary Miller. Earl Martin point- ently destructive," Respondent failed to prove a legiti- ed out that he was supposed to go on vacation on mate and substantial business justification since those Monday, and that he had earned the vacation and was given by Spurgeon are pretextual in that (1) allegedly, entitled to it. Miller agreed. But he said that the employ- neither the agreements nor any past practice developed ees could not be on a work stoppage and a vacation at at either plant permits Respondent to reschedule, at its the same time, and that it was the Union's fault because will, a group of employees' vacations, (2) the manage- during the negotiations they had expressed the desire tots clause was inapplicable since no bargaining go out on strike if the contract was not settled by mid- unit employees did unit work during the strike, and (3) night June 6. Eddington then stated, "Earl, they're notempoees d ui or ng he std going to give you any more money than they have to to Respondent's alleged policy of requiring employees to be support the strike." 5 mworking at the time they begin their vacations has excep- Another employee of the processing plant, Elmer Cox, tions, as admitted by Spurgeon; i.e., employees have been scheduled a vacation to begin June 16. On Friday, June on leave of absence or sick immediately before their va- 13, he picked up his paycheck inside the gate at Re- cations, and this does not itself explain why those can spondent's facilities. He asked Paulsen at that time why plant employees whose vacations were to commence on he did not receive his vacation check. Paulsen responded Monday, June 9, did not receive their vacation pay- that vacation checks had all been canceled because Re- checks. Moreover, the General Counsel contends that spondent decided that employees could not be on a vaca- even if these reasons were relied on in good faith, they tion and on a strike at the same time. were insufficient justification, and, even if that is not the After the 1980 strike ended, employees took time off case, the challenged conduct still violated the Act be- with pay. Their regular vacation scale was set by the cause credible evidence shows that Respondent possessed new collective-bargaining agreement. No employee re- an illegal motive. Consequently, reasons based on con- ceived money in lieu of time off as a result of the re- tract and past practice are, according to General Coun- scheduling of these vacations. In fact Respondent points sel, irrelevant. out that in the administration of the involved collective- As indicated above, it is the General Counsel's posi- bargaining agreements employees are not permitted to tion that by canceling the vacations of a group of em- take vacation pay in lieu of vacation. The following ployees without giving the Union notice and an opportu- notice was posted in the can manufacturing plant: nity to bargain over the change in working conditions ATTENTION^ ALL EMPLOYEES Respondent unilaterally changed the working conditions of its employees in violation of Section 8(aX5) of the All employees with Vacations scheduled in JUNE, Act. The General Counsel argues that the violation JULY, AUGUST or SEPTEMBER, 1980-have should be found and remedied even though not specifi- been voided. All employees who had a Vacation cally alleged in the complaint since assertedly this issue scheduled during this period, MUST reschedule that was fully litigated at the hearing and it is intimately re- Vacation, NO LATER THAN September 5, 1980. lated to the subject matter of the complaint. Employees who began a new anniversary year Respondent argues that rescheduling of vacations is during June, July, August and September, 1980 and not "inherently destructive" of important employee with Vacation time to take from their previous rights because (1) rescheduling by Respondent is author- year, must start their Vacation no later than Decem- ized by the contracts" and past practices and, therefore, ber 29, 1980. did not represent any diminution of vacation benefits, Employees with Vacations to schedule from their and (2) rescheduling vis-a-vis a denial of vacation benefits previous anniversary year will be given priority in can be unlawful only if an antiunion motivation for the rescheduling their vacations, in-so-far as is possi- action is established. "9 Assertedly, Respondent had a sub- ble. 16 17 It is argued that this reason is pretextual; that if Respondent had III CONTENTIONS been acting in good faith, without illegal motivation, then it would have issued the vacation checks when it became apparent that everyone was The General Counsel, citing N.LR.B. v. Great Dane supporting the strike, or even at the end of the strike. 11 Respondent points out that during the 1980 negotiations the Union Trailers, Inc., 388 U.S. 26 (1967), contends that Respond- po Respondent points out thatduring trovisihn be amended tmke the proposed that the 60-day scheduling provision be amended to make the scheduling irrevocable inside the 60 days prior to the beginning of the " The vacation checks which would have been given out on June 6 employee's vacation. Assertedly, the Union, by attempting to obtain ir- were in the can manufacturing plant but pursuant to Spurgeon's order to revocable scheduling of vacations, admitted that Respondent had the reschedule all vacations they were not given to the employees. As indi- right under the preceding contract to reschedule vacations. Reap. Exh. cated above, apparently because of a misunderstanding those regular va- 13. cation checks which were in the processing plant on June 6 were given 19 It is pointed out by Respondent that the vacation pay eventually re- out (with the exceptions noted in the G.C. Exh. 3). ceived by the employees when their vacations were rescheduled was " G.C. Exh. 4. The notice was dated August 28, 1980, and signed by greater than they would have received at the time their vacations were James G. Davis, plant manager. originally scheduled. STOKELY-VAN CAMP, INC. 967 the beginning of the day shift. He did not, however, re- ent's conduct is "inherently destructive" of employees' ceive a check for his regular vacation which had been rights and, therefore, no independent proof of illegal approved (G. C. Exh. 2) and which was supposed to motive is required and no proof of business justification begin on Monday, June 9. In the company of a union is adequate to defend the violation. It is asserted by the representative, Joe Eddington, Earl Martin spoke with General Counsel that, even if the conduct is not "inher- the plant superintendent, Gary Miller. Earl Martin point- ently destructive," Respondent failed to prove a legiti- ed out that he was supposed to go on vacation on mate and substantial business justification since those Monday, and that he had earned the vacation and was given by Spurgeon are pretextual in that (1) allegedly, entitled to it. Miller agreed. But he said that the employ- neither the agreements nor any past practice developed ees could not be on a work stoppage and a vacation at at either plant permits Respondent to reschedule, at its the same time, and that it was the Union's fault because will, a group of employees' vacations, (2) the manage- during the negotiations they had expressed the desire to ment-rights clause was inapplicable since no bargaining go out on strike if the contract was not settled by mid- unit employees did unit work during the strike, and (3) night June 6. Eddington then stated, "Earl, they're not espon ees aed pnit orequnng eh ees (ob going to give you any more money than they have to to wokngent t timege y of reiringcetplosees tocee support the strike."1 working at the time they begin their vacations has excep- Another employee of the processing plant, Elmer Cox, ti o ns, as admitted by Spurgeon; i.e., employees have been scheduled a vacation to begin June 16. On Friday, June o n leave o f a b sen c e o r sic k immediately before their va- 13, he picked up his paycheck inside the gate at Re- c a t io n s, and this does not itself explain why those can spondent's facilities. He asked Paulsen at that time why plant employees whose vacations were to commence on he did not receive his vacation check. Paulsen responded Monday, June 9, did not receive their vacation pay- that vacation checks had all been canceled because Re- checks. Moreover, the General Counsel contends that spondent decided that employees could not be on a vaca- even if these reasons were relied on in good faith, they tion and on a strike at the same time. were insufficient justification, and, even if that is not the After the 1980 strike ended, employees took time off case, the challenged conduct still violated the Act be- with pay. Their regular vacation scale was set by the cause credible evidence shows that Respondent possessed new collective-bargaining agreement. No employee re- an illegal motive. Consequently, reasons based on con- ceived money in lieu of time off as a result of the re- tract and past practice are, according to General Coun- scheduling of these vacations. In fact Respondent points sel, irrelevant. out that in the administration of the involved collective- As indicated above, it is the General Counsel's posi- bargaining agreements employees are not permitted to tion that by canceling the vacations of a group of em- take vacation pay in lieu of vacation. The following ployees without giving the Union notice and an opportu- notice was posted in the can manufacturing plant: nity to bargain over the change in working conditions ATTENTION ALL EMPLOYEES Respondent unilaterally changed the working conditions of its employees in violation of Section 8(aX5) of the All employees with Vacations scheduled in JUNE, Act. The General Counsel argues that the violation JULY, AUGUST or SEPTEMBER, 1980-have should be found and remedied even though not specifi- been voided. All employees who had a Vacation cally alleged in the complaint since assertedly this issue scheduled during this period, MUST reschedule that was fully litigated at the hearing and it is intimately re- Vacation, NO LATER THAN September 5, 1980. lated to the subject matter of the complaint. Employees who began a new anniversary year Respondent argues that rescheduling of vacations is during June, July, August and September, 1980 and not "inherently destructive" of important employee with Vacation time to take from their previous rights because (1) rescheduling by Respondent is author- year, must start their Vacation no later than Decem- ized by the contracts" and past practices and, therefore, ber 29, 1980. did not represent any diminution of vacation benefits, Employees with Vacations to schedule from their and (2) rescheduling vis-a-vis a denial of vacation benefits previous anniversary year will be given priority in c a n b e unlawful only if an antiunion motivation for the rescheduling their vacations, in-so-far as is possi- a c t io n is established." Assertedly, Respondent had a sub- ble. 6 -- 17 It is argued that this reason is pretextual; that if Respondent had III CONTENTIONS been acting i n good faith, without illegal motivation, then it would have issued the vacation checks when it became apparent that everyone was The General Counsel, citing N.L.R.B. v. Great Dane supporting the strike, or even at the end of the strike. Trai .rs, rnc, inn U.T. f 6 (19t /1 t ontend\ »-«»«-»»» Respd- Respondent points out that during the 1980 negotiations the Union Trailers, Inc., 388 U.S. 26 (1967), contends that Respond- proposed that the 60-day scheduling provision be amended to make the scheduling irrevocable inside the 60 days prior to the beginning of the " The vacation checks which would have been given out on June 6 employee's vacation. Assertedly, the Union, by attempting to obtain ir- were in the can manufacturing plant but pursuant to Spurgeon's order to revocable scheduling of vacations, admitted that Respondent had the reschedule all vacations they were not given to the employees. As indi- right under the preceding contract to reschedule vacations. Reap. Exh. cated above, apparently because of a misunderstanding those regular va- 13. cation checks which were in the processing plant on June 6 were given "9 It is pointed out by Respondent that the vacation pay eventually re- out (with the exceptions noted in the O.C. Exh. 3). ceived by the employees when their vacations were rescheduled was "I G.C. Exh. 4. The notice was dated August 28, 1980, and signed by greater than they would have received at the time their vacations were James G. Davis, plant manager. originally scheduled. STOKELY-VAN CAMP, INC. 967 the beginning of the day shift. He did not, however, re- ent's conduct is "inherently destructive" of employees' ceive a check for his regular vacation which had been rights and, therefore, no independent proof of illegal approved (G. C. Exh. 2) and which was supposed to motive is required and no proof of business justification begin on Monday, June 9. In the company of a union is adequate to defend the violation. It is asserted by the representative, Joe Eddington, Earl Martin spoke with General Counsel that, even if the conduct is not "inher- the plant superintendent, Gary Miller. Earl Martin point- ently destructive," Respondent failed to prove a legiti- ed out that he was supposed to go on vacation on mate and substantial business justification since those Monday, and that he had earned the vacation and was given by Spurgeon are pretextual in that (1) allegedly, entitled to it. Miller agreed. But he said that the employ- neither the agreements nor any past practice developed ees could not be on a work stoppage and a vacation at at either plant permits Respondent to reschedule, at its the same time, and that it was the Union's fault because will, a group of employees' vacations, (2) the manage- during the negotiations they had expressed the desire to mnr ts clause was inapplicable since no bargaining go out on strike if the contract was not settled by mid- unit employees did unit work during the strike, and (3) night June 6. Eddington then stated, "Earl, they're not espon ees aed pnit orequnng eh ees (ob going to give you any more money than they have to to wokngent t timege y of r ea plon ees tocee support the strike."1 working at the time they begin their vacations has excep- Another employee of the processing plant, Elmer Cox, ti o ns, as admitted by Spurgeon; i.e., employees have been scheduled a vacation to begin June 16. On Friday, June o n leave of absence or sick immediately before their va- 13, he picked up his paycheck inside the gate at Re- c a t io n s, and this does not itself explain why those can spondent's facilities. He asked Paulsen at that time why plant employees whose vacations were to commence on he did not receive his vacation check. Paulsen responded Monday, June 9, did not receive their vacation pay- that vacation checks had all been canceled because Re- checks. Moreover, the General Counsel contends that spondent decided that employees could not be on a vaca- even if these reasons were relied on in good faith, they tion and on a strike at the same time. were insufficient justification, and, even if that is not the After the 1980 strike ended, employees took time off case, the challenged conduct still violated the Act be- with pay. Their regular vacation scale was set by the cause credible evidence shows that Respondent possessed new collective-bargaining agreement. No employee re- an illegal motive. Consequently, reasons based on con- ceived money in lieu of time off as a result of the re- tract and past practice are, according to General Coun- scheduling of these vacations. In fact Respondent points sel, irrelevant. out that in the administration of the involved collective- As indicated above, it is the General Counsel's posi- bargaining agreements employees are not permitted to tion that by canceling the vacations of a group of em- take vacation pay in lieu of vacation. The following ployees without giving the Union notice and an opportu- notice was posted in the can manufacturing plant: nity to bargain over the change in working conditions ATTENTION ALL EMPLOYEES Respondent unilaterally changed the working conditions of its employees in violation of Section 8(aX5) of the All employees with Vacations scheduled in JUNE, Act. The General Counsel argues that the violation JULY, AUGUST or SEPTEMBER, 1980-have should be found and remedied even though not specifi- been voided. All employees who had a Vacation cally alleged in the complaint since assertedly this issue scheduled during this period, MUST reschedule that was fully litigated at the hearing and it is intimately re- Vacation, NO LATER THAN September 5, 1980. lated to the subject matter of the complaint. Employees who began a new anniversary year Respondent argues that rescheduling of vacations is during June, July, August and September, 1980 and not "inherently destructive" of important employee with Vacation time to take from their previous rights because (1) rescheduling by Respondent is author- year, must start their Vacation no later than Decem- ized by the contracts" and past practices and, therefore, ber 29, 1980. did not represent any diminution of vacation benefits, Employees with Vacations to schedule from their and (2) rescheduling vis-a-vis a denial of vacation benefits previous anniversary year will be given priority in c a n b e unlawful only if an antiunion motivation for the rescheduling their vacations, in-so-far as is possi- a c t io n is established." Assertedly, Respondent had a sub- ble. 6 -- 17 It is argued that this reason is pretextual; that if Respondent had III CONTENTIONS been acting i n good faith, without illegal motivation, then it would have issued the vacation checks when it became apparent that everyone was The General Counsel, citing N.L.R.B. v. Great Dane supporting the strike, or even at the end of the strike. Trai .rs, rnc, inn U.T. f 6 (19t /1 t ontend\ »-«»«-»»» Respd- Respondent points out that during the 1980 negotiations the Union Trailers, Inc., 388 U.S. 26 (1967), contends that Respond- proposed that the 60-day scheduling provision be amended to make the scheduling irrevocable inside the 60 days prior to the beginning of the " The vacation checks which would have been given out on June 6 employee's vacation. Assertedly, the Union, by attempting to obtain ir- were in the can manufacturing plant but pursuant to Spurgeon's order to revocable scheduling of vacations, admitted that Respondent had the reschedule all vacations they were not given to the employees. As indi- right under the preceding contract to reschedule vacations. Reap. Exh. cated above, apparently because of a misunderstanding those regular va- 13. cation checks which were in the processing plant on June 6 were given "9 It is pointed out by Respondent that the vacation pay eventually re- out (with the exceptions noted in the O.C. Exh. 3). ceived by the employees when their vacations were rescheduled was "I G.C. Exh. 4. The notice was dated August 28, 1980, and signed by greater than they would have received at the time their vacations were James G. Davis, plant manager. originally scheduled. STOKELY-VAN CAMP, INC. 967 the beginning of the day shift. He did not, however, re- ent's conduct is "inherently destructive" of employees' ceive a check for his regular vacation which had been rights and, therefore, no independent proof of illegal approved (G. C. Exh. 2) and which was supposed to motive is required and no proof of business justification begin on Monday, June 9. In the company of a union is adequate to defend the violation. It is asserted by the representative, Joe Eddington, Earl Martin spoke with General Counsel that, even if the conduct is not "inher- the plant superintendent, Gary Miller. Earl Martin point- ently destructive," Respondent failed to prove a legiti- ed out that he was supposed to go on vacation on mate and substantial business justification since those Monday, and that he had earned the vacation and was given by Spurgeon are pretextual in that (1) allegedly, entitled to it. Miller agreed. But he said that the employ- neither the agreements nor any past practice developed ees could not be on a work stoppage and a vacation at at either plant permits Respondent to reschedule, at its the same time, and that it was the Union's fault because will, a group of employees' vacations, (2) the manage- during the negotiations they had expressed the desire to ment-rights clause was inapplicable since no bargaining go out on strike if the contract was not settled by mid- unit employees did unit work during the strike, and (3) night June 6. Eddington then stated, "Earl, they're not espon ees aed pnit orequnng eh ees (ob going to give you any more money than they have to to wokngent t timege y of r ea plon ees tocee support the strike."1 working at the time they begin their vacations has excep- Another employee of the processing plant, Elmer Cox, ti o ns, as admitted by Spurgeon; i.e., employees have been scheduled a vacation to begin June 16. On Friday, June o n leave of absence or sick immediately before their va- 13, he picked up his paycheck inside the gate at Re- c a t io n s, and this does not itself explain why those can spondent's facilities. He asked Paulsen at that time why plant employees whose vacations were to commence on he did not receive his vacation check. Paulsen responded Monday, June 9, did not receive their vacation pay- that vacation checks had all been canceled because Re- checks. Moreover, the General Counsel contends that spondent decided that employees could not be on a vaca- even if these reasons were relied on in good faith, they tion and on a strike at the same time. were insufficient justification, and, even if that is not the After the 1980 strike ended, employees took time off case, the challenged conduct still violated the Act be- with pay. Their regular vacation scale was set by the cause credible evidence shows that Respondent possessed new collective-bargaining agreement. No employee re- an illegal motive. Consequently, reasons based on con- ceived money in lieu of time off as a result of the re- tract and past practice are, according to General Coun- scheduling of these vacations. In fact Respondent points sel, irrelevant. out that in the administration of the involved collective- As indicated above, it is the General Counsel's posi- bargaining agreements employees are not permitted to tion that by canceling the vacations of a group of em- take vacation pay in lieu of vacation. The following ployees without giving the Union notice and an opportu- notice was posted in the can manufacturing plant: nity to bargain over the change in working conditions ATTENTION ALL EMPLOYEES Respondent unilaterally changed the working conditions of its employees in violation of Section 8(aX5) of the All employees with Vacations scheduled in JUNE, Act. The General Counsel argues that the violation JULY, AUGUST or SEPTEMBER, 1980-have should be found and remedied even though not specifi- been voided. All employees who had a Vacation cally alleged in the complaint since assertedly this issue scheduled during this period, MUST reschedule that was fully litigated at the hearing and it is intimately re- Vacation, NO LATER THAN September 5, 1980. lated to the subject matter of the complaint. Employees who began a new anniversary year Respondent argues that rescheduling of vacations is during June, July, August and September, 1980 and not "inherently destructive" of important employee with Vacation time to take from their previous rights because (1) rescheduling by Respondent is author- year, must start their Vacation no later than Decem- ized by the contracts" and past practices and, therefore, ber 29, 1980. did not represent any diminution of vacation benefits, Employees with Vacations to schedule from their and (2) rescheduling vis-a-vis a denial of vacation benefits previous anniversary year will be given priority in c a n b e unlawful only if an antiunion motivation for the rescheduling their vacations, in-so-far as is possi- a c t io n is established." Assertedly, Respondent had a sub- ble. 6 -- 17 It is argued that this reason is pretextual; that if Respondent had III CONTENTIONS been acting i n good faith, without illegal motivation, then it would have issued the vacation checks when it became apparent that everyone was The General Counsel, citing N.L.R.B. v. Great Dane supporting the strike, or even at the end of the strike. Trai .rs, rnc, inn U.T. f 6 (19t /1 t ontend\ »-«»«-»»» Respd- Respondent points out that during the 1980 negotiations the Union Trailers, Inc., 388 U.S. 26 (1967), contends that Respond- proposed that the 60-day scheduling provision be amended to make the scheduling irrevocable inside the 60 days prior to the beginning of the " The vacation checks which would have been given out on June 6 employee's vacation. Assertedly, the Union, by attempting to obtain ir- were in the can manufacturing plant but pursuant to Spurgeon's order to revocable scheduling of vacations, admitted that Respondent had the reschedule all vacations they were not given to the employees. As indi- right under the preceding contract to reschedule vacations. Reap. Exh. cated above, apparently because of a misunderstanding those regular va- 13. cation checks which were in the processing plant on June 6 were given "9 It is pointed out by Respondent that the vacation pay eventually re- out (with the exceptions noted in the O.C. Exh. 3). ceived by the employees when their vacations were rescheduled was "I G.C. Exh. 4. The notice was dated August 28, 1980, and signed by greater than they would have received at the time their vacations were James G. Davis, plant manager. originally scheduled. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantial legitimate business justification for rescheduling Borden, Inc., Borden Chemical Division, 600 F.2d 313, 320 vacations. It took the same action during prior actual (Ist Cir. 1979), however, unequal treatment of different and threatened strike situations involving the Union, classes of employees is not a prerequisite to finding an which Respondent contends demonstrates that it had the 8(a)(3) violation where employees are discriminated consistent policy based on its interpretation of the in- against because they engaged in a concerted activity. But volved agreements. Production needs had resulted in re- were the involved employees discriminated against be- scheduling of individual vacations in the past. And, Re- cause they engaged in a strike? spondent continued production at the can manufacturing Involved herein is the scheduling of vacations. There plant using supervisory personnel and had work available is no provision in either of the pertinent agreements for for unit members throughout the strike. Finally, Re- money to be paid in lieu of actual vacation. And Re- spondent believes "that the strike made it inappropriate spondent points out that in the administration of the in- for employees to go on vacation since they were not volved agreements employees are not permitted to take working from which to take a vacation."2 0 It is argued vacation pay in lieu of vacations; to receive vacation pay by Respondent that there is no evidence of any antiunion employees must take time off from work for vacations. 23 motivation. The statement made by Eddington, the union terefore i e vacations official, as to Respondent's motivation is assertedly not e ere the schedu vacations and competent evidence of Respondent's actual motivation. not meelythe ment accrued vacaton pay Texaco While Respondent argues that there is no basis for Inc 179 NLRB 989 (1969 finding that it committed an unfair labor practice, it Respondent's practice under pertinent agreements with points out that, even if this is not the case, an award of the Union was to reschedule vacations as necessary even backpay would be improper because there is no evidence after Respondent had given its approval. It appears that of any damage. Assertedly, any backpay award would Respondent has not taken anything away from those em- constitute a windfall for the employees who fortuitously ployees who scheduled vacations to begin during the scheduled vacations during the strike.21 strike but merely required them to postpone their vaca- tion. The Detroit Edison Company, 206 NLRB 898 IV. DISCUSSIONS AND CONCLUSIONS (1973).24 For the reasons set forth below, I do not believe that In 1974 employees were given vacation pay during the the involved conduct warrants a finding that Respondent strike but had to take time off after the strke. On the engaged in unfair labor practices within the meaning of other hand, in 1980, employees, with the exceptions Section 8(a)(1) and (3) of the Act. noted supra, did not receive vacation pay until they took Under the former, it is an unfair labor practice for an their vacations, which is in accord with paragraph 12.14 employee "to interfere with, restrain, or coerce employ- of the involved agreements. When the employees did re- ees in the exercise of their rights guaranteed in section 7 ceive their vacation pay, it was set by the new collec- of the Act." Section 7 guarantees employees the right to tive-bargaining agreement and was greater than under "engage in . . . concerted activities for the purpose of the old agreement. collective bargaining or other mutual aid or protection Respondent had legitimate business reasons on June 4 .. ." Under Section 8(a)(3), it is an unfair labor prac- when it decided to reschedule vacations. The General tice for an employer "by discrimination in regard to hire Counsel's argument that the management-rights clause or tenure of employment or any term or condition of was inapplicable since no bargaining unit employees did employment to encourage or discourage membership in unit work during the strike overlooks the fact that when any labor organization ... ."22 N.L.R.B. v. Great Dane the decision was made on June 4 to reschedule vacations Trailers, supra, cited by the General Counsel is factually Respondent could not have been aware of this. If subse- distinguishable because there, unlike here, the respondent quent events are to be taken into consideration, included refused to pay striking employees vacation benefits ac- must be the violent nature of the strike and its effect on crued under a terminated collective-bargaining agree- (1) employees who may have wanted to continue to ment while it announced an intention to pay such bene- work, and (2) anyone in management who would con- fits to striker replacements, returning strikers, and non- template reversing a legitimate determination. The ex- strikers who had been at work on a certain date during ceptions to Respondent's policy that employees must be the strike. As pointed out by the court in N.L.R.B. v. working in order to go on vacation prove, rather than disprove, the legitimacy of the rule. The policy is ap- It is conceded that there are exceptions to this rule, i.e., employees plied generally but exceptions are made when justified in on sick leave or leave of absence have been allowed to take their vaca- individual circumstances. tion at times when they would otherwise be working, but it is submitted that these exceptions were for the purpose of accommodating employees who were in difficult personal situations. " As indicated in fn. 21, supra, there were some exceptions to this "1 By not paying vacation pay for vacations which were scheduled practice during the 1980 strike. These exceptions, however, appear to be during the strike, Respondent contends, it caused all strikers to be treated an aberration and had nothing to do with whether these individuals did equally in regard to payment of wages. As pointed out in Respondent's or did not participate in the strike. brief, perfect equality was not achieved in that the 19 employees who re- 1 Compare this to the situation in Westinghouse Electric Corporation, ceived vacation paychecks on June 6 and those employees whose vaca- 237 NLRB 1209 (1978), where the respondent therein denied vacation tion began before June 6 and continued into the strike were not required pay to strikers during a period when the plant was shut down but gave a to take vacations without pay after the strike. week's vacation pay to nonstrikers. The strikers were given time off with " The Supreme Court in N.LR.B. v. Erie Resistor Corp., 373 U.S. 221, pay at a later date but in effect were denied a week of work by the re- 233 (1963), held that discouraging participation in legitimate strikes is in- spondent because they refused to abandon the strike. This is not the situa- cluded in this section of the Act. tion at hand. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantial legitimate business justification for rescheduling Borden, Inc, Borden Chemical Division, 600 F.2d 313, 320 vacations. It took the same action during prior actual (Ist Cir. 1979), however, unequal treatment of different and threatened strike situations involving the Union, classes of employees is not a prerequisite to finding an which Respondent contends demonstrates that it had the 8(a)(3) violation where employees are discriminated consistent policy based on its interpretation of the in- against because they engaged in a concerted activity. But volved agreements. Production needs had resulted in re- were the involved employees discriminated against be- scheduling of individual vacations in the past. And, Re- cause they engaged in a strike? spondent continued production at the can manufacturing Involved herein is the scheduling of vacations. There plant using supervisory personnel and had work available is no provision in either of the pertinent agreements for for unit members throughout the strike. Finally, Re- money to be paid in lieu of actual vacation. And Re- spondent believes "that the strike made it inappropriate spondent points out that in the administration of the in- for employees to go on vacation since they were not volved agreements employees are not permitted to take working from which to take a vacation. _2 It is argued ,„ ^ vacations; to receive vacation pay by Respondent that there is no evidence of any antiunion employees must take time off from work for vacations. 2 3 motivation. The statement made by Eddington, the union T therefore, is the scheduling of vacations and official, as to Respondent's motivation is assertedly not n me t p . Txc, competent evidence of Respondent's actual motivation. n c. 179 NLRB 989 (1969). While Respondent argues that there is no basis for R d prctc u p n at h finding that it committed an unfair labor practice, itRespondent s practice under pertinent agreements with points out that, even if this is not the case, an award of th e U n io n w as t o reschedule vacations as necessary even backpay would be improper because there is no evidence aft e r Respondent had given its approval. It appears that of any damage. Assertedly, any backpay award would Respondent has not taken anything away from those em- constitute a windfall for the employees who fortuitously ployees who scheduled vacations to begin during the scheduled vacations during the strike.21 s t rik e but merely required them to postpone their vaca- tion. The Detroit Edison Company, 206 NLRB 898 IV. DISCUSSIONS AND CONCLUSIONS (1973). 2 4 For the reasons set forth below, I do not believe that I n 1974 employees were given vacation pay during the the involved conduct warrants a finding that Respondent st n k e b u t had t o take t m e o ff aft er t h e str k e . O n t h e engaged in unfair labor practices within the meaning of other hand, in 1980, employees, with the exceptions Section 8(a)(l) and (3) of the Act. no t ed supra, d id not receive vacation pay until they took Under the former, it is an unfair labor practice for an their vacations, which is in accord with paragraph 12.14 employee "to interfere with, restrain, or coerce employ- o f the involved agreements. When the employees did re- ees in the exercise of their rights guaranteed in section 7 ceive their vacation pay, it was set by the new collec- of the Act." Section 7 guarantees employees the right to tive-bargaining agreement and was greater than under "engage in ... concerted activities for the purpose of the old agreement. collective bargaining or other mutual aid or protection Respondent had legitimate business reasons on June 4 . . .. " Under Section 8(a)(3), it is an unfair labor prac- when it decided to reschedule vacations. The General tice for an employer "by discrimination in regard to hire Counsel's argument that the management-rights clause or tenure of employment or any term or condition of was inapplicable since no bargaining unit employees did employment to encourage or discourage membership in unit work during the strike overlooks the fact that when any labor organization . . . ."22 N.L.R.B. v. Great Dane the decision was made on June 4 to reschedule vacations Trailers, supra, cited by the General Counsel is factually Respondent could not have been aware of this. If subse- distinguishable because there, unlike here, the respondent quent events are to be taken into consideration, included refused to pay striking employees vacation benefits ac- must be the violent nature of the strike and its effect on crued under a terminated collective-bargaining agree- (1) employees who may have wanted to continue to ment while it announced an intention to pay such bene- work, and (2) anyone in management who would con- fits to striker replacements, returning strikers, and non- template reversing a legitimate determination. The ex- strikers who had been at work on a certain date during ceptions to Respondent's policy that employees must be the strike. As pointed out by the court in N.L.R.B. v. working in order to go on vacation prove, rather than disprove, the legitimacy of the rule. The policy is ap- I It is conceded that there are exceptions to this rule, i.e., employees plied generally but exceptions are made when justified in on sick leave or leave of absence have been allowed to take their vaca- individual circumstances. tion at times when they would otherwise be working, but it is submitted that these exceptions were for the purpose of accommodating employees who were in difficult personal situations. I As indicated in fn. 21, supra, there were some exceptions to this 21 By not paying vacation pay for vacations which were scheduled practice during the 1980 strike. These exceptions, however, appear to be during the strike, Respondent contends, it caused all strikers to be treated an aberration and had nothing to do with whether these individuals did equally in regard to payment of wages. As pointed out in Respondent's or did not participate in the strike. brief, perfect equality was not achieved in that the 19 employees who re- 1" Compare this to the situation in Westinghouse Electric Corporation, ceived vacation paychecks on June 6 and those employees whose vaca- 237 NLRB 1209 (1978), where the respondent therein denied vacation tion began before June 6 and continued into the strike were not required pay to strikers during a period when the plant was shut down but gave a to take vacations without pay after the strike,.week's vacation pay to nonstrikers. The strikers were given time off with " The Supreme Court in N.LR.B. v. Erie Resistor Corp, 373 U.S. 221, pay at a later date but in effect were denied a week of work by the re- 233 (1963), held that discouraging participation in legitimate strikes is in- spondent because they refused to abandon the strike. This is not the situa- cluded in this section of the Act. tion at hand. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantial legitimate business justification for rescheduling Borden, Inc, Borden Chemical Division, 600 F.2d 313, 320 vacations. It took the same action during prior actual (Ist Cir. 1979), however, unequal treatment of different and threatened strike situations involving the Union, classes of employees is not a prerequisite to finding an which Respondent contends demonstrates that it had the 8(a)(3) violation where employees are discriminated consistent policy based on its interpretation of the in- against because they engaged in a concerted activity. But volved agreements. Production needs had resulted in re- were the involved employees discriminated against be- scheduling of individual vacations in the past. And, Re- cause they engaged in a strike? spondent continued production at the can manufacturing Involved herein is the scheduling of vacations. There plant using supervisory personnel and had work available is no provision in either of the pertinent agreements for for unit members throughout the strike. Finally, Re- money to be paid in lieu of actual vacation. And Re- spondent believes "that the strike made it inappropriate spondent points out that in the administration of the in- for employees to go on vacation since they were not volved agreements employees are not permitted to take working from which to take a vacation. _2 It is argued ,„ ^ vacations; to receive vacation pay by Respondent that there is no evidence of any antiunion employees must take time off from work for vacations. 2 3 motivation. The statement made by Eddington, the union T therefore, is the scheduling of vacations and official, as to Respondent's motivation is assertedly not n me t p . Txc, competent evidence of Respondent's actual motivation. n c. 179 NLRB 989 (1969). While Respondent argues that there is no basis for R d prctc u p n at h finding that it committed an unfair labor practice, itRespondent s practice under pertinent agreements with points out that, even if this is not the case, an award of th e U n io n w as to reschedule vacations as necessary even backpay would be improper because there is no evidence after Respondent had given its approval. It appears that of any damage. Assertedly, any backpay award would Respondent has not taken anything away from those em- constitute a windfall for the employees who fortuitously ployees who scheduled vacations to begin during the scheduled vacations during the strike.21 s t rik e but merely required them to postpone their vaca- tion. The Detroit Edison Company, 206 NLRB 898 IV. DISCUSSIONS AND CONCLUSIONS (1973). 2 4 For the reasons set forth below, I do not believe that I n 1974 employees were given vacation pay during the the involved conduct warrants a finding that Respondent st n k e b u t had t o take t m e o ff aft er t h e str k e . O n t h e engaged in unfair labor practices within the meaning of other hand, in 1980, employees, with the exceptions Section 8(a)(l) and (3) of the Act. no t ed supra, d id not receive vacation pay until they took Under the former, it is an unfair labor practice for an their vacations, which is in accord with paragraph 12.14 employee "to interfere with, restrain, or coerce employ- o f the involved agreements. When the employees did re- ees in the exercise of their rights guaranteed in section 7 ceive their vacation pay, it was set by the new collec- of the Act." Section 7 guarantees employees the right to tive-bargaining agreement and was greater than under "engage in ... concerted activities for the purpose of the old agreement. collective bargaining or other mutual aid or protection Respondent had legitimate business reasons on June 4 . . .. " Under Section 8(a)(3), it is an unfair labor prac- when it decided to reschedule vacations. The General tice for an employer "by discrimination in regard to hire Counsel's argument that the management-rights clause or tenure of employment or any term or condition of was inapplicable since no bargaining unit employees did employment to encourage or discourage membership in unit work during the strike overlooks the fact that when any labor organization . . . ."22 N.L.R.B. v. Great Dane the decision was made on June 4 to reschedule vacations Trailers, supra, cited by the General Counsel is factually Respondent could not have been aware of this. If subse- distinguishable because there, unlike here, the respondent quent events are to be taken into consideration, included refused to pay striking employees vacation benefits ac- must be the violent nature of the strike and its effect on crued under a terminated collective-bargaining agree- (1) employees who may have wanted to continue to ment while it announced an intention to pay such bene- work, and (2) anyone in management who would con- fits to striker replacements, returning strikers, and non- template reversing a legitimate determination. The ex- strikers who had been at work on a certain date during ceptions to Respondent's policy that employees must be the strike. As pointed out by the court in N.L.R.B. v. working in order to go on vacation prove, rather than disprove, the legitimacy of the rule. The policy is ap- I It is conceded that there are exceptions to this rule, i.e., employees plied generally but exceptions are made when justified in on sick leave or leave of absence have been allowed to take their vaca- individual circumstances. tion at times when they would otherwise be working, but it is submitted that these exceptions were for the purpose of accommodating employees who were in difficult personal situations. I As indicated in fn. 21, supra, there were some exceptions to this 21 By not paying vacation pay for vacations which were scheduled practice during the 1980 strike. These exceptions, however, appear to be during the strike, Respondent contends, it caused all strikers to be treated an aberration and had nothing to do with whether these individuals did equally in regard to payment of wages. As pointed out in Respondent's or did not participate in the strike. brief, perfect equality was not achieved in that the 19 employees who re- 1" Compare this to the situation in Westinghouse Electric Corporation, ceived vacation paychecks on June 6 and those employees whose vaca- 237 NLRB 1209 (1978), where the respondent therein denied vacation tion began before June 6 and continued into the strike were not required pay to strikers during a period when the plant was shut down but gave a to take vacations without pay after the strike,.week's vacation pay to nonstrikers. The strikers were given time off with " The Supreme Court in N.LR.B. v. Erie Resistor Corp, 373 U.S. 221, pay at a later date but in effect were denied a week of work by the re- 233 (1963), held that discouraging participation in legitimate strikes is in- spondent because they refused to abandon the strike. This is not the situa- cluded in this section of the Act. tion at hand. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantial legitimate business justification for rescheduling Borden, Inc, Borden Chemical Division, 600 F.2d 313, 320 vacations. It took the same action during prior actual (Ist Cir. 1979), however, unequal treatment of different and threatened strike situations involving the Union, classes of employees is not a prerequisite to finding an which Respondent contends demonstrates that it had the 8(a)(3) violation where employees are discriminated consistent policy based on its interpretation of the in- against because they engaged in a concerted activity. But volved agreements. Production needs had resulted in re- were the involved employees discriminated against be- scheduling of individual vacations in the past. And, Re- cause they engaged in a strike? spondent continued production at the can manufacturing Involved herein is the scheduling of vacations. There plant using supervisory personnel and had work available is no provision in either of the pertinent agreements for for unit members throughout the strike. Finally, Re- money to be paid in lieu of actual vacation. And Re- spondent believes "that the strike made it inappropriate spondent points out that in the administration of the in- for employees to go on vacation since they were not volved agreements employees are not permitted to take working from which to take a vacation. _2 It is argued ,„ ^ vacations; to receive vacation pay by Respondent that there is no evidence of any antiunion employees must take time off from work for vacations. 2 3 motivation. The statement made by Eddington, the union T therefore, is the scheduling of vacations and official, as to Respondent's motivation is assertedly not n me t p . Txc, competent evidence of Respondent's actual motivation. n c. 179 NR 989 1 While Respondent argues that there is no basis for R d prctc u p n at h finding that it committed an unfair labor practice, itRespondent s practice under pertinent agreements with points out that, even if this is not the case, an award of th e U n io n w as to reschedule vacations as necessary even backpay would be improper because there is no evidence after Respondent had given its approval. It appears that of any damage. Assertedly, any backpay award would Respondent has not taken anything away from those em- constitute a windfall for the employees who fortuitously ployees who scheduled vacations to begin during the scheduled vacations during the strike.21 s t rik e but merely required them to postpone their vaca- tion. The Detroit Edison Company, 206 NLRB 898 IV. DISCUSSIONS AND CONCLUSIONS (1973). 2 4 For the reasons set forth below, I do not believe that I n 1974 employees were given vacation pay during the the involved conduct warrants a finding that Respondent st n k e b u t had t o take t m e o ff aft er t h e str k e . O n t h e engaged in unfair labor practices within the meaning of other hand, in 1980, employees, with the exceptions Section 8(a)(l) and (3) of the Act. no t ed supra, d id not receive vacation pay until they took Under the former, it is an unfair labor practice for an their vacations, which is in accord with paragraph 12.14 employee "to interfere with, restrain, or coerce employ- o f the involved agreements. When the employees did re- ees in the exercise of their rights guaranteed in section 7 ceive their vacation pay, it was set by the new collec- of the Act." Section 7 guarantees employees the right to tive-bargaining agreement and was greater than under "engage in ... concerted activities for the purpose of the old agreement. collective bargaining or other mutual aid or protection Respondent had legitimate business reasons on June 4 . . .. " Under Section 8(a)(3), it is an unfair labor prac- when it decided to reschedule vacations. The General tice for an employer "by discrimination in regard to hire Counsel's argument that the management-rights clause or tenure of employment or any term or condition of was inapplicable since no bargaining unit employees did employment to encourage or discourage membership in unit work during the strike overlooks the fact that when any labor organization . . . ."22 N.L.R.B. v. Great Dane the decision was made on June 4 to reschedule vacations Trailers, supra, cited by the General Counsel is factually Respondent could not have been aware of this. If subse- distinguishable because there, unlike here, the respondent quent events are to be taken into consideration, included refused to pay striking employees vacation benefits ac- must be the violent nature of the strike and its effect on crued under a terminated collective-bargaining agree- (1) employees who may have wanted to continue to ment while it announced an intention to pay such bene- work, and (2) anyone in management who would con- fits to striker replacements, returning strikers, and non- template reversing a legitimate determination. The ex- strikers who had been at work on a certain date during ceptions to Respondent's policy that employees must be the strike. As pointed out by the court in N.L.R.B. v. working in order to go on vacation prove, rather than disprove, the legitimacy of the rule. The policy is ap- I It is conceded that there are exceptions to this rule, i.e., employees plied generally but exceptions are made when justified in on sick leave or leave of absence have been allowed to take their vaca- individual circumstances. tion at times when they would otherwise be working, but it is submitted that these exceptions were for the purpose of accommodating employees who were in difficult personal situations. I As indicated in fn. 21, supra, there were some exceptions to this 21 By not paying vacation pay for vacations which were scheduled practice during the 1980 strike. These exceptions, however, appear to be during the strike, Respondent contends, it caused all strikers to be treated an aberration and had nothing to do with whether these individuals did equally in regard to payment of wages. As pointed out in Respondent's or did not participate in the strike. brief, perfect equality was not achieved in that the 19 employees who re- 1" Compare this to the situation in Westinghouse Electric Corporation, ceived vacation paychecks on June 6 and those employees whose vaca- 237 NLRB 1209 (1978), where the respondent therein denied vacation tion began before June 6 and continued into the strike were not required pay to strikers during a period when the plant was shut down but gave a to take vacations without pay after the strike,.week's vacation pay to nonstrikers. The strikers were given time off with " The Supreme Court in N.LR.B. v. Erie Resistor Corp, 373 U.S. 221, pay at a later date but in effect were denied a week of work by the re- 233 (1963), held that discouraging participation in legitimate strikes is in- spondent because they refused to abandon the strike. This is not the situa- cluded in this section of the Act. tion at hand. STOKELY-VAN CAMP, INC. 969 Antiunion motivation has not been demonstrated. The Upon the basis of the foregoing findings of fact, and statements made by Paulsen and Miller do not suggest upon the entire record in this proceeding, I make the fol- union animus or hostility. And Union Representative Ed- lowing: dington's statement was not adopted by Respondent. The General Counsel's charge that Respondent unilat- CONCLUSIONS OF LAW erally changed the working conditions of its employees 1. Respondent is, and has been at all times material in violation of the Act is not supported by the record. herein, an employer within the meaning of Section 2(2) Respondent did not change the working conditions. As of the Act, and engaged in commerce within the mean- indicated above, Respondent's conduct was in accord ing of Section 2(6) and (7) of the Act. with past practice. 2. The Union is, and at all times material has been, a I find that Respondent's reasons for rescheduling are labor organization within the meaning of Section 2(5) of legitimate and substantial and are not pretextual since no the Act. antiunion motivation has been demonstrated. 3. As found above, Respondent has not engaged in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] STOKELY-VAN CAMP, INC. 969 Antiunion motivation has not been demonstrated. The Upon the basis of the foregoing findings of fact, and statements made by Paulsen and Miller do not suggest upon the entire record in this proceeding, I make the fol- union animus or hostility. And Union Representative Ed- lowing: dington's statement was not adopted by Respondent. The General Counsel's charge that Respondent unilat- erally changed the working conditions of its employees 1. Respondent is, and has been at all times material in violation of the Act is not supported by the record. herein, an employer within the meaning of Section 2(2) Respondent did not change the working conditions. As of the Act, and engaged in commerce within the mean- indicated above, Respondent's conduct was in accord ing of Section 2(6) and (7) of the Act. with past practice. 2. Th e Union is, and at all times material has been, a I find that Respondent's reasons for rescheduling are la b o r organization within the meaning of Section 2(5) of legitimate and substantial and are not pretextual since no th e Ac t. antiunion motivation has been demonstrated. 3. A s f o u nd ab o v e, R e spon d en t h as n o t e ng a g ed in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] STOKELY-VAN CAMP, INC. 969 Antiunion motivation has not been demonstrated. The Upon the basis of the foregoing findings of fact, and statements made by Paulsen and Miller do not suggest upon the entire record in this proceeding, I make the fol- union animus or hostility. And Union Representative Ed- lowing: dington's statement was not adopted by Respondent. The General Counsel's charge that Respondent unilat- erally changed the working conditions of its employees 1. Respondent is, and has been at all times material in violation of the Act is not supported by the record. herein, an employer within the meaning of Section 2(2) Respondent did not change the working conditions. As of the Act, and engaged in commerce within the mean- indicated above, Respondent's conduct was in accord ing of Section 2(6) and (7) of the Act. with past practice. 2. Th e Union is, and at all times material has been, a I find that Respondent's reasons for rescheduling are lab o r organization within the meaning of Section 2(5) of legitimate and substantial and are not pretextual since no th e Ac t. antiunion motivation has been demonstrated. 3. A s f o u nd ab o v e, R e spon d en t h as n o t e ng a g ed in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] STOKELY-VAN CAMP, INC. 969 Antiunion motivation has not been demonstrated. The Upon the basis of the foregoing findings of fact, and statements made by Paulsen and Miller do not suggest upon the entire record in this proceeding, I make the fol- union animus or hostility. And Union Representative Ed- lowing: dington's statement was not adopted by Respondent. The General Counsel's charge that Respondent unilat- erally changed the working conditions of its employees 1. Respondent is, and has been at all times material in violation of the Act is not supported by the record. herein, an employer within the meaning of Section 2(2) Respondent did not change the working conditions. As of the Act, and engaged in commerce within the mean- indicated above, Respondent's conduct was in accord ing of Section 2(6) and (7) of the Act. with past practice. 2. Th e Union is, and at all times material has been, a I find that Respondent's reasons for rescheduling are lab o r organization within the meaning of Section 2(5) of legitimate and substantial and are not pretextual since no th e Ac t. antiunion motivation has been demonstrated. 3. A s f o u nd ab o v e, R e spon d en t h as n o t e ng a g ed in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.]