Government Employees

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Federation of Government Employees, AFL-CIO and Office and Professional Employ- ees International Union, Local No. 2, AFL- CIO. Case 5-CA-16029 31 January 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 7 May 1985 Administrative Law Judge David L. Evans issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions,' a supporting brief, and an answering brief. The Re- spondent also filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified.' 1. The judge found that the Respondent violated Section 8(a)(5), (3), and (1) by discriminatorily and unilaterally withholding from all striking employ- ees vested vacation benefits they would have re- ceived but for their participation in the strike which began 14 November 1983. He found that, al- though the contract states that employees earn 1 day of annual leave per pay period, the parties have interpreted prior contracts as vesting employ- ees with annual leave at the beginning of the leave year. The judge then concluded that, because the Board has held that cancellation of vested vacation benefits is inherently destructive of significant em- ployee rights, all of the striking employees were entitled to be made whole for any loss they had suffered because of the Respondent's discriminato- ry actions.2 This fording included both those em- ' No exceptions have been filed to the judge's findings and conclusions with respect to the allegations of interrogation, threats, promise of bene- fit, prohibition against wearing protected union insignia, and cancellation of paid caucus time for employee negotiators. 2 Member Dennis finds it unnecessary to decide whether the Respond- ent's withholding of scheduled vacation leave for strikers was inherently destructive of employee rights because there is unambiguous evidence of unlawful motive for the Respondent's conduct Thus, as the judge re- counted, the Respondent's chief negotiator Mulholland testified that the issue of annual leave for striking employees arose in contemporaneous ne- gotiations with the Union. Mulholland testified he told the Union's chief negotiator Haines that "there was going to be no reward for anyone being on strike," "[w]e weren't going to pay anybody for striking against us," "we didn't want any benefit at all for employees being on strike," and "we had no intent of giving any reward for the employees while they were on strike." Mulholland also testified he told a Federal mediator at one point, "'[W]e want to make it perfectly clear that there is no reward for the employees being on-for going out on strike ,' which we felt to be unjustified," and, on another occasion, "[T]here would be no ployees who had not scheduled leave prior to the strike, as well as those who had previously sched- uled leave to be taken at that time. The Respondent excepts to this finding, main- taining that the judge was without authority to rule on whether all striking employees had been denied accrued leave without regard to whether the leave had been scheduled. The Regional Director specifi- cally dismissed an allegation that all striking em- ployees had been discriminatorily denied annual leave and the complaint alleges a violation only with respect to those employees whose scheduled leave was canceled. The General Counsel acknowl- edges that, in light of the dismissed allegation, it may be appropriate to limit the remedy to those employees who scheduled or attempted to schedule annual leave prior to the strike. In view of the Re- gional Director's dismissal of the charge insofar as it alleged an unlawful denial of unscheduled leave, we find the violation should be limited to the dis- criminatory cancellation of scheduled leave. 2. The judge also found that employees sched- uled leave by submitting a formal written leave slip to a supervisor for approval prior to the time leave was to be taken, and that the only employees to have leave "scheduled and approved" in writing prior to the strike were Alma Langman and Joseph Henderson.3 The General Counsel excepts to the judge's restrictive definition of what constitutes scheduled leave. We find merit in this exception. At the beginning of the year, the Respondent's personnel department distributes blank leave sched- ules to each of the Respondent's 15 departments. The specific procedures for scheduling leave vary somewhat from department to department, but gen- erally one leave chart is distributed to the employ- ees in each department, who then indicate on the chart what their preference for leave is, if they know at that time. As noted in the parties' collec- tive-bargaining agreement, the annual leave sched- ules are to be completed based on the mutual con- sent of the employees and their supervisors, with preference accorded to seniority within the depart- ment. Once any conflicts in scheduling are re- solved, the schedule is finalized by the supervisor. At least some of the charts are collected by person- nel in March or April of the leave year. A copy of benefit for them being on strike." These admissions totally belie the state- ment in Respondent President Blaylock's November 4 memorandum to employees that previously scheduled annual leave would be rescheduled "due to the critical need for maintaining operations " Accordingly, Member Dennis finds that the Respondent denied striking employees al- ready scheduled leave to penalize them for exercising their Sec 7 rights in violation of Sec 8(a)(3) and (1) of the Act, and that this unilateral change also violated Sec 8(a)(5) 3 No exceptions were filed to the judge's finding that Langman and Henderson were discriminatonly denied annual leave 278 NLRB No. 55 GOVERNMENT EMPLOYEES 379 the schedule is usually retained by a supervisor in each department for help in planning the Respond- ent's workload. In some departments, the schedules are periodically updated to reflect any changes in the scheduled leave. Employees are also permitted to schedule or reschedule leave later in the year if they prefer by making a request to the supervisor for such leave. The Respondent retains the right to reschedule leave for employees if work considerations dictate; however, if scheduled leave is canceled by the Re- spondent and cannot be rescheduled by the end of the year, the Respondent is contractually bound to pay the employees for that unused leave in order that they not forfeit that benefit under the "use or lose" provision in the contract. In essence, once annual leave is placed on the leave chart or noted by a supervisor, employees are permitted to take the leave unless the Respondent needs to resched- ule it. In that case, employees are entitled to re- schedule the leave, by the end of the year or be paid for it. The Respondent also maintains the system, relied on by the judge, involving formal leave slips which are submitted by employees and signed by their de- partmental supervisors. This system is primarily used to maintain a record of when leave is actually taken. In most cases, the leave slips are submitted prior to the time the employees take annual leave; however, some employees regularly submit them after leave is taken.4 The leave slips are signed by the departmental supervisors and forwarded with the, bimonthly time and attendance reports to the personnel office. They are-then used for bookkeep- ing purposes and to resolve any conflicts which may arise concerning the amount of leave an em- ployee has left in the leave year. We find, contrary to the judge, that leave is scheduled in many, if not most, instances prior to approval of the formal leave slips. This scheduling occurs in a variety of ways, including the use of departmental leave charts, written memoranda, and oral discussions between employees and supervi- sors. The process of submitting a formal written leave slip to a supervisor for approval when leave has previously been scheduled is clearly only a ministerial step taken for bookkeeping purposes. We therefore find that the judge erred in stating that the only employees to have leave scheduled and approved at the time of .the strike were Lang- man and Henderson. Accordingly, we shall order that the Respondent compensate all employees who 4 Employees do at tunes make their initial requests for leave using these slips. Generally, however, the leave has already been approved before the slip is submitted Obviously, this is the case in those instances where leave is taken before the formal slip is completed had scheduled annual leave withheld during the 1983 leave year because of their participation in the strike.5 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, American Federation of Government Employees, AFL-CIO, Washington, D.C., its offi- cers, agents, successors , and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(d). "(d) Withholding scheduled vacation benefits from its employees or in any other manner dis- criminating against them in regard to hire, tenure of employment, or any other terms and conditions of employment, to encourage or discourage mem- bership in any labor organization." 2. Substitute the following for paragraph 2(a). "(a) Make whole, with interest, all employees in the unit found appropriate for that amount of scheduled vacation pay which was unlawfully withheld from them." 3. Substitute the attached notice for that of the administrative law judge. s We leave to the compliance stage the determination as to which em- ployees had scheduled leave prior to the time of the strike We amend the remedy section of the judge's decision to provide for the payments, with interest, of vacation pay to all employees from whom the Respond- ent withheld scheduled annual leave because of their strike participation. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT interrogate you with regard to your membership in or activities on behalf of Office and Professional Employees International Union, Local No. 2, AFL-CIO. WE WILL NOT threaten you with unspecified re- prisals because , of your protected concerted, or union, activities. WE WILL NOT solicit you'to return from an eco- nomic strike by promising you money or other economic benefits. WE WILL NOT prohibit you from wearing pro-, tected union insignia. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT withhold scheduled vacation ben- efits from you or in any other manner discriminate against you in regard to hire, tenure of employ- ment, or any other terms or condition of employ- ment to encourage or discourage membership in the Union or any other labor organization. WE WILL NOT modify or terminate the vacation rights of economic strikers without first bargaining with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole, with interest, all employ- ees for all 1983 scheduled vacation pay which we have unlawfully withheld. WE WILL bargain with the Union over any pro- posed modification or termination of the vacation rights of employees who have participated in an economic strike. AMERICAN FEDERATION OF GOVERN- MENT EMPLOYEES, AFL-CIO Thomas M. Lucas, Esq., for the General Counsel. Mitchell Jay Notis, Esq., of Washington, D.C., for the Re- spondent. Kathleen Kocan Moore, of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge. The charges herein were filed on 15 December 1983 by Office and Professional Employees International Union, Local No. 2, AFL-CIO (Charging Party or the Union) against American Federation of Government Employees, AFL-CIO (Respondent or the Employer). Complaint on these charges was issued on 12 October 1984. The com- plaint alleges that before, during, and after an economic strike by office personnel, including certain attorneys represented by the Union, Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, by the following acts and conduct: Instructing an em- ployee not to discuss the strike with other employees and threatening the employee with unspecified reprisals if she did so; interrogating an employee about her protected strike-related conversations with another employee; promising employees a bonus if they abandoned the strike; prohibiting nonstriking employees from wearing insignia which supported the strike; canceling an agree- ment to provide certain paid time for caucusing by em- ployee negotiators; and canceling vacations of, and with- holding accrued vacation benefits from, employees be- cause they or other employees joined or supported the strike. Respondent denies the commission of any unfair labor practices. A hearing on this complaint was con- ducted by me on 4, 5, 6, 7, and 10 December 1984 at Washington, D.C. Respondent, the General Counsel, and Charging Party have filed briefs which have been care- fully considered. On the record as a whole I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a labor organization which at all times material herein has been, and is, an unincorporated asso- ciation with a place of business in Washington, D.C., where it is engaged in the business of representing em- ployees and bargaining with employers throughout the United States and overseas, with respect to wages, hours, and other terms and conditions of employment. During the calendar year ending 31 December 1983, Respond- ent, in the course and conduct of those operations, col- lected and received dues and initiation fees in excess of $25,000 at its Washington, D.C. facility. Therefore Re- spondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES For a number of years the Charging Party has repre- sented employees of Respondent throughout the United States in the following bargaining unit which is admitted to be appropriate under Section 9(b) of the Act: All permanent employees including probationers, term employees and certain field clerical positions who are included in the appropriate bargaining unit as set forth by the NLRB in its decision clarifying the bargaining unit (Case No. 5-UC-82, September 10, 1976, and 5-UC-137, November 28, 1980), em- ployed by Respondent at its National Headquarters and Respondent's Districts, including attorneys as- signed to those districts, and field political organiz- ers; excluding all supervisors, managerial employ- ees, guards, confidential employees and Personnel Department employees as, defined by the NLRB, and National Representatives and Organizers, Build- ing Engineers and Building Staff employees. Since 1970 the parties have entered a series of collective- bargaining agreements, the most recent of which was reached 15 January 1984; that agreement (the 1984 con- tract) is effective from 15 January 1984 until 12 April 1987. The agreement immediately preceding the 1984 contract was effective by its original terms from 22 May 1981 through 31 May 1983; this agreement (the 1981 contract) was extended by various agreements of the par- ties until midnight 30 September 1983. Negotiations for a successor to the 1981 contract began about 1 September 1983 and continued after expiration of the 1981 contract on 30 September. On 14 November 1983 the employees in the unit described above initiated an economic strike GOVERNMENT EMPLOYEES which continued through 15 January 1984 when the suc- cessor agreement was signed.' A. Alleged Unlawful Instruction, Threat, and Interrogation 1. Facts Respondent's main office occupies several floors of a Washington, D.C., building at which approximately 150 employees and supervisors are employed. In addition, Respondent has 15 districts located throughout the United States. The office of each district is headed by a national vice president. Respondent's District 2 is com- prised of the States of New York and New Jersey. The District 2 office, located in New Brunswick, New Jersey, is headed by National Vice President Rita Mason. The New Brunswick office staff under Mason consists of her confidential secretary, a clerk-typist, and an attorney.2 The clerk-typist and attorney were the only employees at the District 2 office who were represented by the Charging Party at the time of the events herein. The clerk typist assigned to the District 2 office in November 1983 was Sheila Landfair; the attorney was Gay Snyder. Snyder reported to Mason for administrative matters; for legal matters she reported to Respondent's general coun- sel, Mark Roth,3 whose office is at the Washington, D.C. building. On 25 October, in anticipation of the strike which he then felt imminent, Roth circulated a memorandum enti- tled "Office Responsibilities to be Completed by COB Friday, October 29, 1983." The memo required Respond- ent's attorneys to have their desks and files in order by the close of business on 28 October. The memo also at- tached District of Columbia Bar Association Legal Ethics Opinion No. 118 which outlined the responsibil- ities of union-represented attorneys whose offices may be on strike. The opinion referred to, the employer in its hy- pothesis (which was obviously the Respondent herein) as "Union X." To quote its own summary, the opinion states: To summarize, the professional obligations of the Union X staff attorneys to their clients continue un- abated during any job action and take precedence over the exigencies of membership in the collective- bargaining unit. The staff attorneys may participate in a job action against their clients only if that par- ticipation in no way interferes with the timely and competent performance of the work. The opinion goes on to state that it applied only to exist- ing legal obligations at the time of the strike and would not apply if, during a "job action," no new legal matters were undertaken for the client. 1 All dates hereafter are between 1 September 1983 and 15 January 1984, unless otherwise- specified 8 Also reporting to Mason are field representatives who work various areas in New York and New Jersey. These representatives do not regu- larly report to the New Brunswick office, but they do visit there for con- ferences ' Of Respondent's 15 district offices, 5, in addition to New Brunswick, have field attorneys who report both to Roth and the respective national vice presidents in charge of each district 381 On 8 November when the strike again appeared immi- nent, Roth circulated another memo, this one entitled "Attorney Obligations/Responsibilities During Strike Action." In this memo Roth reminded attorneys that they were required to comply with the District of Co- lumbia Bar Opinion No. 118 and that striking attorneys would not be assigned new matters but would be expect- ed to come in (on an hourly paid basis) to finish existing work. Snyder, as well as all other main office and field attorneys, received these memoranda. When the strike began on 14 November, some of the attorneys felt constrained to comply with Roth's 8 No- vember memo, but wished to show their support for the strike. To do both, some of the attorneys reported to work wearing armbands, or streamers, which were about 1-3/4 inches wide with the legend "hostage/striker" printed on. Snyder was one of these attorneys. On the first 3 days of the strike, clerk-typist Landfair did not come to work. On the morning of 17 November Snyder met Landfair in the parking lot as they both came to work about 8:45 a.m., 15 minutes before their starting time. Snyder was wearing a "Hostage/Striker" armband. According to Snyder's testimony,' Snyder asked Landfair what she was doing there. Landfair re- plied that she was going to work. Snyder appealed to Landfair to join the strike. Snyder told Landfair that she (Snyder) was in sympathy with the strike and would not be reporting for work if it were not for the directives mentioned above, and that was why she was wearing a "hostage/striker" armband at the time. She told Landfair that she, Landfair, would not get a paycheck during the strike and she could be replaced if she did join the strike but, on the other hand, the Union could take "some dis- ciplinary action" against Landfair if she did not join the strike because Landfair was a union member. Landfair replied that it looked like she would lose either way, so she thought she would go to work. Snyder replied to Landfair, "Well, that's your decision." Snyder testified that about 9 o'clock, when Mason came to work, Mason and Landfair entered Mason's office for a conversation which Snyder could not hear. After that conversation, Mason came to Snyder's office. According to Snyder: [S]he seemed a bit angry and she said to me in a angry voice, "Gay, did you speak to Sheila about the strike?" and I said "Yes, I did." She said, "I thought I told you that you shouldn't talk to any- body about the strike." I said "Well ... you did say that but I understood that you meant that I couldn't speak to Locals5 about it," but I didn't see how that applied to co-workers. She said, "Well I told you that you shouldn't speak to anybody about the strike." I said well, "Sheila has to be informed that was going on." She says, "Well, that's my job not yours." Further, according to Snyder, Mason continued: 4 Landfatr did not testify. 5 The Local in District 2 are, in effect, the clients of Snyder 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I told you in the past that you're nosey and that you shouldn't be butting your nose into areas that don't pertain to you. You're not Sheila's shop stew- ard. I had this . . . problem with you before with another employee . . . I've been very patient with you, I have children your age. But I'm not going to tolerate this in the future. At a later point in the day Mason told Snyder, according to Snyder, "I've called Mark [Roth] and told him what you did regarding Shelia." Mason testified that she asked Landfair whether she had been sick or was on strike the preceding day, and Landfair stated that she had been sick. Mason further testified that she told Landfair that there was a strike going on, and that it was her choice to work or strike, and she asked Landfair what she planned to do. Landfair stated that she had intended to work, but Snyder had said that she (Landfair)-would "lose either" way and that Landfair could be disciplined by the OPEIU if she did not strike. Mason, further according to her own testimo- ny, then went to Snyder and asked, what she had told Landfair and why. Snyder told Mason that she had told Landfair about the strike and Mason then told Snyder: "That I wanted to speak to Sheila first as her supervisor because I had need to know about her status . . . and that I wanted to speak to first. That's pretty much what I said to her." Mason testified that she then returned to Landfair and told her again that it was the employee's choice whether to work or not, and that Landfair left the premises, joining the strike. To the extent they differ, I credit Snyder who not only was an employee testifying against her current su- pervisor and employer, 6 but had a far more credible de- meanor than Mason. After the exchange between Mason and Snyder, Mason called Respondent' s general counsel Roth. Ac- cording to Mason. "Well, I told him that the clerk-typist had come in to work and she said [that] after what they had said to her she was going home, and just so he knew about it." Mason testified that Roth replied that he would look into it. According to Roth: I received a phone call from National Vice Presi- dent Rita Mason and she was concerned that some- thing improper had occurred because, as she related to me, an employee had come to work, a bargaining unit secretary had 'come to work, had reported in and was working, and according to Ms. Mason, Gay Snyder went to the employee and spoke to her; and, after that, the employee left visibly upset, very upset. So I told Ms. Mason that I thought that was a pretty serious allegation and that I would in- vestigate it.7 Almost immediately after Mason's telephone call to Roth, Roth called Snyder. According to Snyder's testi- mony: 6 Georgia Rug Mill, 131 NLRB 1304 (1961) 7 In her testimony, Mason did not relate that she told Roth that Land- fair had been upset, however Mason did testify that Landfair was "quite upset," and it is probable that Mason related this fact to Roth.. [Roth] said an accusation has been made that you persuaded an employee who has crossed the picket line to change her mind or that you interfered with her decision to work. He definitely used the word "grave." He said I consider it a grave wrongdoing or a grave mistake or a grave error for anybody to convince an employee to walk off the job after they've made a decision to work, and before I go any further, he said if you tell, me now what hap- pened between you and Sheila I won't take any dis- ciplinary action against you. And if you won't, he said I might suggest that you may want to have a union representative. Roth testified that he did tell Snyder that a "serious alle- gation . . _ . had been made that she might have coerced an employee into leaving work, an employee who had chosen to come in; and I told her that I thought that was a serious matter." Roth further acknowledged that he told Snyder that she "should get ahold [sic] of her union `rep.' and call me right back." Roth did not deny using the word "grave mistake" or "grave error," as Snyder testified, and he acknowledged telling Snyder that her conduct, as had been reported by Mason, could lead to discipline "if it was true." Snyder was not, in fact, disciplined. The only further mention of the matter occurred in December, when Snyder visited Respondent's Washington, D.C. headquar- ters on business. When Roth saw her then he told Snyder that the matter would still have to be resolved; however, the matter was effectively dropped thereafter. To the extent their testimony differs, I credit Snyder who had a credible demeanor and was, again, testifying against her direct superior for legal matters.8 2. Conclusions The complaint alleges that Mason's 17 November statements to Snyder constitute interference with em- ployees' rights to discuss the strike among themselves and a threat of unspecified reprisals against Snyder. It further alleges that Roth's 17 November statements to Snyder further constitute an unlawful interrogation and a separate threat of unspecified reprisals. It is indisputable that Snyder had a Section 7 right to appeal to Landfair to join the economic strike then in progress. It is further clear from the testimony of both Snyder and Mason that Mason conveyed an instruction to Snyder that Snyder should not have made such an appeal to Landfair, and that all of Landfair's information about the strike should, or should have, come from Mason. This conduct constitutes an instruction not to engage in protected concerted, and union, activity, and was a violation of Section 8(a)(1) of the Act, as I so find and conclude. Mason's further statements that she would s Respondent argues that Snyder's testimony makes no sense because Roth would not logically have said that he would not discipline Snyder if Snyder told him the truth However, since there would have been no way to hold Roth to his word, it is not inconceivable that he tried to elicit a "confession" of some sort from Snyder through the technique of promising that there would be no punishment if Snyder told hun "the truth " GOVERNMENT EMPLOYEES 383 not tolerate Snyder's conduct in this regard , and that she had informed Snyder's other superior, Mark Roth, of Snyder's conduct is further a threat of unspecified repris- als. Any employee, including an attorney, would neces- sarily conclude that- she was in immediate trouble for ex- ercising her Section 7, right of communicating with a fellow employee, and that she would be in more trouble if she similarly communicated with Landfair, or any other employee, again. Accordingly, I find and conclude that Respondent violated Section 8(a)(1) by this conduct of Mason, as alleged. As Snyder had a right to communicate with Landfair, she further had a right to be free of interrogations about her communications. Roth, also on 17 November, de- manded a recitation of what Snyder had told Landfair, knowing that the communication revolved around the protected activity of the strike and an attempt to get Landfair to join in it. Roth was, purely and simply, in- quiring into Snyder's protected union activity. This was not the case, as Respondent appears to argue, of an em- ployee investigating whether an employee had, during a course of generally protected activity , gone beyond the sphere of the Act's protection.9 The fact that Landfair had become upset proved nothing; it certainly did not prove that Snyder had engaged in unprotected activity, or even suggest that such had occurred . Presumably, if Landfair had reported such conduct as a threat to Mason, Mason would have informed Roth of the fact (as well as included it in her own testimony); this did not happen. That is, Roth had been given no reason to be- lieve that Snyder had threatened Landfair, or engaged in any other unprotected activity , while she was engaging in the protected activity of appealing to a fellow employ- ee to join the strike. Roth's statements that Snyder could well wish to con- tact her union representative' if she did not respond to his interrogation, and that she could be disciplined if Mason's allegations were true, were clear threats that disciplinary proceedings were to be instituted against her for her protected activity. Therefore, Respondent's con- duct, by Roth, constituted an interrogation and threat in violation of Section 8(a)(1) of the Act as I further find and conclude. B. Alleged Unlawful Inducements to Abandon the Strike 1. Facts During the strike Charles James was a service depart- ment employee under the supervision of William Giles. James and Giles have been friends for 25 years, long before either was hired by Respondent . Giles testified that on 22 December he found out by memorandum from Respondent's president, Blaylock, that employees who returned from strike by 23 December would receive pay for the preceding 2 weeks, and that they would be allowed to use annual leave for the period between 26 and 30 December at which time the building would be closed. James testified that Giles called him at home on the evening of 22 December and: [W]e were talking about different things and during one portion of the conversation he came up talking about the strike. He asked me if I would come back to work and I told no I wouldn't. He said if I came back to work on that Friday, which was the 23rd I believe, that I would get paid for 2 weeks pay. That would be that week of the 23rd through the week of the 1st. The office building would be closed from the 24th, for the holidays. Giles denied calling James or making any such statement to James or any other employee during the strike. While no memorandum from Blaylock was placed in evidence by either party, Respondent did, in fact, pay on 23 December, 2 weeks' pay to seven employees who re- turned to work between 20 and 22 December . Harold Malloy, Respondent's director of finance and chief offi- cer over payroll, described this pay as an "advance" which was given because it was easier to handle the pay- roll that way. Returning employees who had expended their 1983 annual leave benefit received this advance and repaid it either by future deductions or by "purchasing" 1984 leave; that is, to the extent the 23 December checks represented pay for days not worked , a deduction was made from the employees 1984 leave benefit. (Therefore, if an employee who had used his 1983 leave returned from strike on December 22 and worked all that day and December 23 he could pay back the pay for the 8 days he had not worked by deductions in 1984 or he could "purchase" 8 days of 1984 annual leave benefit by taking 8 fewer days annual leave in 1984.) Also, according to Samuel Edward Widger, Respondent's director of per- sonnel, employees who returned from the strike between 20 and 23 December were allowed to use accrued annual leave during the Christmas week in which the building was closed, if they had not used all their annual leave for that year. Therefore, Giles' announcement to James, as attested to by James, proved correct. James and Giles have been friends for 25 years. It is certainly logical that Giles would have called his friend to tell him that if he re- turned the next day he would receive 2 weeks' pay, espe- cially if that was what had been told Giles. It is further unlikely that James would testify falsely against his cur- rent employer;10 and, more importantly, James im- pressed me as the more credible witness. Accordingly, I find that Giles did call James and tell him that if he re- turned to work on December 23 he would receive 2 weeks' pay. 2. Conclusion As will be developed later in this decision , Respondent refused to allow striking employees to take accrued annual leave during the strike . This included the period which Respondent's offices were closed between Christ- mas and New Year's Day. For the nonreturning employ- ees, the annual leave and pay for this period was simply "lost." The "loss" for returning employees was eliminat- ed to the extent they had leave to cover it ; to the extent 9 Cf. Rubin Bros. Footwear, 99 NLRB 610 (1952) 10 Georgia Rug Mill, supra 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they did not, the loss was reduced from a loss in pay in 1983 to a loss in pay or vacation time in 1984. Therefore, the ability to use 1983 leave, and the "advance" of 1984 leave were clearly economic benefits. The prospect of receiving these benefits was assuredly an inducement to return from strike. Therefore, Giles' offer of these bene- fits to James was an inducement to abandon the strike, and a violation of Section 8(a)(1) of the Act, as I find and conclude. It is further alleged that on 5 January Giles also solic- ited employee Verna Pitts to abandon the strike by promising her a bonus . Pitts was called by the General Counsel but testified to no more than casual conversa- tions between Giles and herself while she was on the picket line. In none of these was there any promise of benefits made to Pitts. Therefore, there is a failure of evi- dence on this allegation, and I shall recommend its dis- missal. ,C. Prohibition Against Wearing Armbands 1. Facts As noted above, in contemplation of the 14 November strike, Roth issued memoranda on 25 October and 8 No- vember telling employee-attorneys that it was their pro- fessional responsibility to continue working during the strike, at least' to the extent it was necessary to finish cases which had begun before the strike. Employee Gay Snyder testified that in order to comply with this direc- tive and avoid problems with the District of Columbia Bar Association upon whose opinion Roth relied, she and other attorneys who were in sympathy with the strikers wore redbands which had imprinted thereupon, in black, "hostage/striker." These armbands were actual- ly streamers which were about 17 inches long and about 1-3/4 inches wide. They were worn around the sleeves of coats until the employees were inside; then they were transferred to jackets, shirt sleeves, dress sleeves, or worn across the body front. On 6 January, when several employees began crossing the picket line and returned to work, Roth issued a memorandum to all Washington and field attorneys asking for status reports of pending cases. At the end of the memorandum, Roth added: "Finally, this is to remind you that the wearing of red `hostage' badges is not con- sidered appropriate while you are working inside AFGE offices. Please remove them upon entry. Thank you. Snyder testified that after receiving this memorandum, she stopped wearing the armbands; presumably other at- torneys, who were then reporting to work did also. Roth testified that the reason for this directive was: They [the returning employees] were all over the building. There was [sic] very bad feelings between the people coming back and the people on strike, as well you might expect and, you know, as we did expect; and I felt that to continue to allow people to wear them ' in the building with the people coming back in could be a problem for not only- Well, for actually both parties' safety . I thought it would-probably more hostility from the people who had returned to work, but 1 felt that it was an inflammatory sign. I don't feel like I ever approved them. I never felt they were appropriate; but basically I felt it would be more of an incident to ask people to take them off when we weren't doing business, when there were no employees coming in and basically no visitors. I felt that to make it a big symbol and make them take them off might increase the strike period; and I thought, in the beginning, it would be over or hoped it would be over pretty quick. But, at this point, I just felt , really, it was not professional and it was dangerous. So in the least adversarial way that 'I could think of I asked them to take them off through this memo. The attorneys employed at Respondent's headquarters worked solely on Respondent's third floors. On that floor only one other employee worked during the strike; this person was not an attorney. There is no evidence of any conflicts between the attorneys wearing the arm- bands and any other persons who crossed the picket line and went back to work during the strike. 2. Conclusions The complaint alleges that Roth's 6 January memoran- dum interfered with the Section 7 rights of the attorneys who were complying with Roth's previous memoranda and working during the strike. Respondent acknowl- edges that rules against wearing union insignia are pre- sumptively invalid, but insist that "special consider- ations" in this case justify an exception to the rule. Alter- natively, Respondent argues that the armbands were not union insignia in the first place. Respondent relies primarily on the decision of the Eighth Circuit in Fabri-Tek, Inc. v. NLRB, 352 F.2d 577 (8th Cir. 1965), in which a Board finding of an 8(a)(1) violation on this issue was not enforced. The court found that the employer's prohibition against union campaign buttons was consistent with its rules against all "solicita- tions" and the buttons had a "tendency to distract" which the court found to be a sufficient basis for the pro- hibition. Aside from the fact that I am bound by the Board's decision in Fabri-Tek, i i I would point out that the circuit premised its decision on the conclusion that the buttons in question were a virtual certainty to create disruption among employees as they advocated employee selection of one of two rival unions. Here, the armbands did not denounce or otherwise disparage those who had crossed the picket line and appealed to no factionalism among the employees. The armbands identified the wear- ers as ones who would be striking were they not profes- sionally compelled to be working. They did not consti- tute an appeal to' other employees to cease work and go back out on strike. Respondent further places heavy reliance on United Aircraft Corp., 134 NLRB 1632 (1961). In that case the Board found nonviolative the employer's prohibition 11 148 NLRB 1623 (1964). GOVERNMENT EMPLOYEES 385 against union pins which declared the wearer to be one who had not returned to work during a long strike which had recently ended; however, the Board noted abundant evidence that many of the union officers and adherents had vowed recrimination against those who had not supported the strike for its duration. Here, there is no evidence of any such intent by the Union or its ad- herents.12 The law is clear that substantial evidence of special circumstances, such as interference with production or safety, is required before an employer may prohibit the wearing of union insignia, and the burden of establishing those circumstances rest on the employer. See Eckerd's Market, 183 NLRB 337 (1970); Fabric Services, 190 NLRB 540 (1971); Singer Co., 199, NLRB 1195 (1972). Here, Roth ventured only generalizations and conclu- sions that there existed a possibility that the armbands would cause confrontations between the returnees and the attorneys. His testimony was probative of nothing, and I find that Respondent has failed to meet its burden of showing a special circumstance which would justify the prohibition against wearing the insignia on the arm- bands. Finally, Respondent contends that the armbands were not actually union insignia because they made no refer- ence to the Union itself. As Snyder testified, the employ- ees wore the "hostage/striker" armbands to show soli- darity with the Union. The intent of the message, that the employees were working against their true desires and sympathies with the Union, would necessarily be well known to any supervisory personnel or returning strikers. The "union activity" element of the armbands would therefore be necessarily implicit to all who ob- served them and the armbands necessarily constituted "union insignia" within the reasoning of the cases cited above. Accordingly, I find that by its prohibition against wearing the "Hostage/Striker" union insignia armbands, Respondent violated Section 8(a)(1) of the Act. D. Cancellation of Paid Caucus Time 1. Facts The General Counsel contends that, in violation of Section 8(a)(5), Respondent "unilaterally cancelled" a contractual obligation to pay employee negotiators for time spent caucusing between negotiation sessions. Before substantive negotiations for the 1984 contract began, the parties discussed "ground rules" for negotia- tions. The Union insisted on written ground rules when the employer proposed and insisted on paying official time for only five union negotiators rather than the six which were permitted in certain grievance sessions under the 1981 contract. On 8 December a memorandum of un- 12 Respondent also cites Andrews Wire, 189 NLRB 108 (1971), where the Board found permissible a narrow restriction against placing any stickers, union or otherwise, on "hardhats" which, because of the nature of the workplace, were designed to be reflective There, the interference with the reflection presented an immediate peril to the wearer and consti- tuted a "special circumstance" which rendered the employer rule nonvmo- latmve. derstanding was negotiated. It contains five numbered paragraphs, to wit: MEMORANDUM OF UNDERSTANDING FOR NEGOTIATIONS OF RENEWAL OF THE CURRENT OPEIU CONTRACT 1) AFGE will provide official time for negotiations for up to five (5) Shop Committee representatives as designated by OPEIU; 2) Joint sessions will be conducted from 1:00 p.m. to 8:00 p.m., on a day-to-day basis with changes upon mutual consent of the parties; Official time for caucuses on days where no joint session is held will be limited to four hours unless extended by mutual agreement. [Emphasis added.] 3) The term "negotiations" shall include both joint sessions and caucuses from the date agreed upon by the parties for the first joint session; 4) Nothing in this Memorandum affects mid-term negotiations. 5) This memorandum is signed without prejudice to the rights of either party on [sic] situations other than negotiations on renewal of the current OPEIU contract. The agreement was signed by Respondent's then chief negotiator, Ronald King, and the Union's chief spokes- person, Donald Haines. The clause of paragraph 2, which is italicized in this quotation, was interlineated by the parties in King's handwriting and it is the clause upon which the allegations on this issue are based. Employee-Union negotiator Dave Rodriguez testified that the provisions relating to caucus time were reached after a discussion of when and how much time would be allowed. On cross-examination Rodriguez testified: THE WITNESS: During the negotiations of the memorandum which is Exhibit 6 we requested that we would have in writing the ability to caucus whether or not there was a session that day. And we also requested that the negotiations be scheduled for Monday through Friday, understand- ing the management's position was that occasionally they might not be able to meet that commitment. And therefore, the Union said we still need to be able to caucus so on the days that we don't meet we ought to have at least-not at least, we want to have four hours of caucus time, the mornings to caucus in other words. THE WITNESS: The Employer said that it would be willing to say as it did in the exhibit that they would be on a day-to-day basis and the Union said that we didn t want to have day-to-day basis be- cause in our view that would allow the employer to say we're not meeting tomorrow as a way 'of put- ting pressure on the Union to negotiate, to compro- 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mise I should say. And the union preferred the lan- guage daily negotiations, Monday through Friday. That 'part of the dispute was never resolved spe- cifically in writing. The exhibit says "day-to-day basis," so that's what we finally agreed to and we essentially took management's word that they wouldn't use the schedule as a way to jerk us around. King testified that he categorically told the Union that if there were sessions only on Monday and Friday caucus time would not be allowed each day between such sessions; he further testified, in response to a bla- tantly leading question, that he told Haines and the other union negotiators that caucus time was allowed only the day before and the day after negotiations.13 This testi- mony of King was totally incredible, and it was credibly denied by Haines. I find that there was no limitation upon caucus time other than that which is expressed in the agreement as quoted above. Bargaining sessions before the strike were held on 7-9, 12-15, 19-21, 28, and 30 September into the early morn- ing hours of 1 October; on 26 October; and 2, 4-5, and 7-9 November. After commencement of the strike on 14 November sessions were held on 2, 5, 6, 13, and 19 De- cember and 6, 10, and 12 January. At the session which began on 30 September and ended in the early morning hours of 1 October, accord- ing to Haines: John Mulholland [who] by then had become chief spokesperson for AFGE announced a variety of things he said would happen from the expiration of the agreement and he said that we would have- well with, with regard to this specifically he said that the ground [rules] agreement was dead, that it was over, because the contract had expired and that we would not be given official time for negotia- tions. He also made references to various items he called "Union Institutional Benefits" under the agreement, under the contract, not the memoran- dum of understanding . . . he said that the agree- ment was dead and we would not have official time for negotiations. A. I wouldn't characterize it as cancelled. What I told them at that period of time, we had been in ne- gotiations for an extended period of time, that we were in mediation at that time I believe at the re- quest of the joint, the request of the parties, and that we had given full and fair consideration to their position, we were finished with the bargaining, we weren't going to negotiate with them any more, we gave them our final offer, we said you can sign off it if you want, and there was going to be no future negotiations and the ground rules would be inoperative, and I spelled out institutional benefits in the contract that would no longer apply to them, some terms and conditions would remain, the insti- tutional benefits would not, and I ticked those off, and we had no further negotiations until F.M.C.S. scheduled meetings in which we then did attend. Q. In fact didn't you say that the ground rule agreement was dead or words to that effect? A. Yes. Q. On September 30th, am I correct? A. I think it was in the morning of October 1, about 2:00 o'clock. What was said precisely on 2 a.m. after a lengthy bar- gaining session is not susceptible to precise proof, but Mulholland credibly denied that he stated that the ground rules agreement was no longer to be applied "be- cause the contract had expired." For each of the sessions that occurred after 1 October and before the strike of 14 November, Respondent did pay straight-time wages for all hours spent in face-to-face negotiations; however it refused to permit any employee negotiators to take administrative leave on the ground that the "Memorandum of Understanding" was then in- operative. Despite Mulholland's 1 October declaration that the negotiations were over and there was nothing left for the Union to do but sign Respondent's last proposal, there were, as recited above, several meetings thereafter be- tween the parties. Also compromises were made by both sides before the ultimate agreement on 13 January; that is, negotiations did, in fact, continue after 1 October. 2. Conclusions Mulholland was called as an adverse witness by'the Gen- eral Counsel and asked: Q. Isn't it true that in those negotiations when no agreement was concluded on that date that you an- nounced the cancellation of various benefits and terms and conditions between the parties? A. Yes. Q. And wasn't one of the items which you men- tioned to be cancelled was the ground rules agree- ment? 13 John Mulholland (who took over as chief employees negotiator of the sixth session) offered in his testimony a post hoc definition of "caucus time" which also required that paid caucuses be conducted on the day before or a day after negotiations This testimony was nothing more than a retrospective, self-serving construction and probative of nothing The General Counsel contends that Respondent violat- ed Section 8(a)(5) and (1) of the Act by canceling provi- sions of the "Memorandum of Understanding" which provided official time for caucuses. The General Counsel cites no cases for this proposition,14 but, given the facts as found above, Respondent's action constitutes at most a breach of contract which does not, of itself, constitute a violation of Section 8(a)(5). Even if it could be argued that every breach of contract constitutes a refusal to bar- gain under Section 8(a)(5), the General Counsel has not proved a breach of contract in Respondent's action. The General Counsel and Charging Party rely on the second clause of the second numbered paragraph of the 14 Nor does the Charging Party in its brief submitted only on this Point GOVERNMENT EMPLOYEES 387 "Memorandum of Understanding" for the proposition that Respondent had an obligation to furnish caucus time, up to 4 hours a day, any time the Union requested it until negotiations were concluded, whenever that might have been. Absent the clearest evidence, I would not conclude that Respondent assumed such an opened- ended obligation to provide paid caucus time. Bargaining could have been interrupted, legitimately, for months. Under the General Counsel's argument, Respondent would have been liable for 4 hours' caucus time each day, even if there was indisputably nothing,to caucus about. This would be an unreasonable result and should not be held to be the intent of the parties absent the clearest evidence. The entirety of paragraph 2, must be read as a whole. The clause on which the General Counsel and Charging Party rely, the second clause of paragraph 2, is necessari- ly premised on the first clause of paragraph 2. That clause clearly states that "Joint Sessions will be conduct- ed . . . on a day-to-day basis" this is the premise and predicate for the operation for the second clause which provides for paid time for caucuses. In the early morning hours of October 1, the "day-to- day" sessions ended. While the negotiations were not "over," as Mulholland declared, it is clear that they had entered a new phase. His tactical statement signaled a change in the pace and procedures of negotiations, and this was necessarily clear to all parties. As the dates of the negotiations listed above reflect, there were no meet- ings between 1 October and 26 October and the only "day-to-day" sessions were in the week before the strike, 4-5 and 7-9 November. Thus events bore out Mulhol- land, and there were no day-to-day meetings until those immediately preceding the' strike. The General Counsel does not contend that there was any violation of the law in Respondent's refusal to meet between 1 and 26 Octo- ber, or between 26 October and 2 November, or between 2 and 4 November. The General Counsel's failure to contend that there was any violation of the agreement, or the Act, in Respondent's failure to meet during those days is necessarily a concession that there was no duty to meet "on a day-to-day" basis during this period. Thus the premise for the "Memorandum of Understanding," as it provided paid caucus time between "day-to-day" ses- sions, was necessarily eroded, lawfully, and Respondent's refusal thereafter to provide the 4 hours per day of caucus time to the union negotiators was not a breach of contract, or a violation of Section 8(a)(5) of the Act. Accordingly, I shall recommend that this allegation of the complaint be dismissed. E. Denial of Annual Leave 1. Facts The 1981 contract provided in pertinent part: Leave Section 601 All employees employed by AFGE on or after January 2, 1977, shall earn one (1) day annual leave per pay period for a total of twenty-six (26) days per leave year. There will not be any carry-over of unused leave earned in any leave after January 1, 1977. Section 603 At the beginning of the leave year each unit employees will be credited with 26 days of annual leave to be used that year. The vacation scheduling period shall extend from January 1 thru (sic) December 31 of each year. Section 604 When due to workload or other reason whereby the Employer is unable to grant annual leave or reschedule annual leave already ap- proved, the employees shall be paid -for the leave in order that they will not ° forfeit the earned leave they ordinarily would have used during a leave year. Section 605 The vacation schedule shall be agreed upon by mutual consent in each department with preference according to seniority within the respec- tive department. However, there shall be equitable distribution of long weekend leave among all of the respective department. The vacation scheduling period shall coincide with the leave year. There is a seeming contradiction between the statement in section 601 that leave will be earned on a per-pay- period basis and the statement in section 603 that em- ployees are to be credited with 26 days of annual leave on a first of each leave year. However, Respondent's di- rector of finance, Harold Malloy, testified that 26 days of annual leave is, in fact, credited to employees at the first of a leave year. Also, Respondent's director of labor management services, John Mulholland, testified that if an employee quits at any time of the year, he is given a separation pay on the basis of his balance of 26 days of earned annual leave as long as he gives 2 weeks' notice. Samuel Edward Widger, director of Respondent's per- sonnel department, testified that at the first of each year the personnel department submits to each of the 15 de- partment heads at the national office scheduling sheets for use in scheduling employees' annual leave. The de= partment heads are to seek out individual employees and find out what their preference for leave during the year is, if they know at that time. The department heads are to use the schedules as planning devices, to schedule em- ployees according to anticipated workload. The sched- ules are also, useful to show if there is any conflict be- tween employees desiring to take vacations at the same time. In such event, seniority controls as required'by the contract' quoted above. If an employee informs the de- partment head that he wishes a certain period of annual leave and that period is filled in on the chart for him, the employee does not lose the annual leave if he decides to take it at another time, as long as it is taken before the end of the year. Employees are not required to express any preference when the charts are circulated early in the year; if they have not then decided on their vacation plans, they state their preferences to their supervisors later in the year when they do decide. Employees are en- couraged to take no more than 4 days of annual leave in December so that there will not be too many employees in a use-or-lose position at the end of the year; otherwise, there are no limitations concerning when employees may 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take annual leave. Widger testified that of the 15 depart- ment heads, usually 8 submit the forms back to the per- sonnel office which stores them for 1 year, after which they are destroyed. There is no evidence that either the personnel department nor any other department heads use the completed forms for any other purposes during the remainder of the year. Employees of several different departments testified that they had always been allowed to take annual leave on the dates they had selected earlier in the year and had put on the departmental schedules which were circulated as described above. In each case, however, the employ- ees acknowledged that they did not simply fail to show up on the dates they had previously selected; they signed written leave slips, and received written approval before they left. Employees testified to only one type of excep- tion to the practice of securing written approval before each absence to take annual leave ; this was when an em- ployee had to leave work suddenly because of an emer- gency or could not report to work because of some un- foreseen event. In each case, however, employees noti- fied their supervisors of the emergency orally and then a written application was signed and submitted , and for- mally approved, on the employee's return. The approval slips, and not the charts showing the employees' desires at the first of the leave years, are used by Respondent in order to account for the amount of leave that has been taken in a year. Any questions as to how much annual leave an employees has remaining at any given point of the year are resolved on the basis of what the "Applica- tion for Leave" slips show, and not the charts showing employees' preferences which are usually completed by 1 April of each year. Employee Alma Gustodio Langman received written approval for annual leave for the 28 working days be- tween 12 December and 20 January by submitting "Ap- plication for Leave" forms to her supervisor, Barbara Harrison. Harrison signed the forms as "approved" on 24 June and 11 and 31' August 1983. On 24 October attor- ney-employee Joseph Henderson, after submitting a simi- lar written request, received written approval from Re- spondent's general counsel, Mark Roth, for annual leave for the 8-day period from 9 through 18 November. Hen- derson had previously requested to use his leave before the 9-18 November period, but the leave had to be post- poned because of his court appearances on behalf of Re- spondent. On November 4, in contemplation of the 14 November strike, Respondent's President Kenneth Blaylock issued a memorandum to all employees stating, inter alia: So as to avoid any misunderstanding or unnecessary prejudice, we believe that it is our responsibility to inform you of the following effects of any strike action: AFGE will pay employees for all work performed up to the day of the strike, but no pay will follow the strike unless work is performed. Any annual leave already scheduled and approved to take place after the strike begins will be resched- uled by the employer due to the critical need for maintaining operations. Henderson did begin his annual leave on 9 November, after making sure that he had no court appearances or other pressing legal matters to handle during his period of proposed leave. On the morning of 14 November Henderson was at home when the strike began . When he heard of it, he called Roth. He told Roth that he knew (from the above-quoted memorandum from Blaylock) that his leave was canceled but that he could not come in that date. Roth told Henderson to come the next day and that Respondent will count that day (14 November) as use of compensatory time which Henderson had earned. Henderson reported the next day but, as de- scribed in the case of Snyder above, he wore the "hostage/striker" armbands when he had to appear for work and, as he testified, walked the picket line as often as he could. After the strike was over Henderson asked Roth if he was going to be compensated for the balance of his 9-18 November leave which had been canceled because of the strike. Roth replied, "You're just not get- ting it . . . . Your union walked away from that." Lang- man had requested her leave as far in advance as she did because she intended to go to the Philippines during De- cember and January and she wished to take advantage of an excursion rate. Langman went ahead and took the trip for which she had made a down payment long in ad- vance. She was not compensated for the 28 days which had been requested and approved , and it is undisputed that she would have been compensated for that time but for the strike. Before the strike started no employees in addition to Langman and Henderson had requested, and had re- ceived written approval for, annual leave which was to have been taken during what turned out to be the strikes period, 14 November through 15 January. Respondent stipulated that all requests which were made for annual leave after 14 November were denied or just not re- sponded to. Respondent further stipulated that if, any other employees had made requests for annual leave after the strike began, they would have been denied. None of the employees were compensated in any way for the loss of the balance of the 26 days of 1983 annual leave which they had not used in 1983 before the start of the strike. During the strike the issue of what was going to happen to the striking employees' 1983 annual leave came up at negotiations . According to the direct exami- nation of Mulholland, Respondent's chief negotiator: I believe it was around December 5th first time he clarified that he [Haines, the Union's chief nego- tiator] was talking about that he wanted the leave that the employees forfeited, because they were on strike, he wanted it credited to-to the employees; and I told him, very emphatically, that there would be no-that there was going to be no reward for anybody being on strike. We weren't going to pay anybody for striking against us. He, again, specifically raised it as a proposal in- I believe around the 6th-5th or 6th of January GOVERNMENT EMPLOYEES 389 when he again talked about the-that there would not be settlement without these housekeeping mat- ters being taken care of, and he addressed the leave and it was talked about in two different-in two re- lations. The first was dealing with the-again, the credit- ing of the leave that they had forefeited because they were on strike; and the other one related to that in the event that the contract was retroactively applied and we had-if they would agree, if the AFGE would agree to allowing employees to credit up to 10 days leave, which they now can, that if the contract was retroactively applied, then they would be able to credit that leave in 1984. Again, I told him very clearly that there would be no-We didn't want any benefit at all for em- ployees being on strike and that there would be no crediting of leave under either procedures. It was raised again, specifically, face to face on the very last day of negotiations. It was obvious that the union was willing to make major conces- sions and the strike was just about to be over; and if we handled that case very carefully, the strike would be over and we could settle the contract. So in discussing a proposal with [the Federal me- diator] I said, "we want to make it perfectly clear that there is no reward for the employees being on-for going out on strike," which we felt to be unjustified and we weren't going to be dealing with these housekeeping issues; we should say no. And, as a result of that, we framed an economic issue that was-the may [sic] key parts were an ad- ditional 3 percent in the third year of an agreement; there would have to a third year agreement, three- year agreement; and an increase in the level of the dental program, which had been long sought goal of the union. We agreed on that proposal and Mr. Haynes and his committee [were] brought in by the mediator, and I made it very, very clear again to Mr. Haynes that we had no intent of giving any reward for the employees while they were on strike. There was to be no housekeeping-these housekeeping items of leave. We weren't about to credit. We're not interested in it. We weren't going to settle it. And we laid out our offer of a third year agreement with a 3 percent raise and-and an additional 3 ,percent in the level 8 in the dental; I mean, in factors of that. Mr. Haynes understood that. He took it back to his group; back to the mediator again. The mediator said, "No, they . . . everything was acceptable, but they wanted crediting on that leave"; and I told the mediator in no uncertain terms that we weren't in- terested; there would be no benefit for them being on strike. He took it back to the union. The union compro- mised away that housekeeping item and we settled on my last offer. On cross-examination, the General Counsel asked Mul- holland then to admit that he had refused to consider the Charging Party's request for annual leave in negotiations. Mulholland denied that he had refused to consider the- Union's proposal and, at that point, and not before, he advanced the proposition that the 3-percent raise he had offered at the last negotiation session had been in trade for the Charging Party's request for credit for 1983 leave which the strikers had not been allowed to take. This testimony was, of course, totally inconsistent with the direct testimony of Mulholland quoted above. It was fur- ther inconsistent with the testimony of Mulholland's ad- ministrative assistant, Brian John DeWyngaert, that Re- spondent was insisting that it would not "reward" em- ployees striking by paying them for annual leave while on strike. Furthermore, a 3-percent wage increase would have been a great "reward" if it was given to employees who lost only a few hours of annual leave by reason of Respondent's denying all annual leave requests after the strike began; indeed it would have been a great windfall to those employees. For this reason, and because Mulhol- land appeared to be making up the "3 percent compro- mise" story as he went along,1 s I discredit Mulholland's testimony on cross-examination that he gave full consid- eration to the Charging Party's proposal that the em- ployees be paid for the annual leave which Respondent claimed they had "forfeited" by going on strike. 2. Conclusions The General Counsel contends that Respondent "vio- lated Sections 8(a)(l), (3) and (5) of the Act on and after 14 November 1983 by unilaterally cancelling scheduled vacations of Local 2 bargaining unit employees and with- holding payment to said employees for such accrued va- cation benefits."16 The General Counsel argues that: (1) the annual leave was "guaranteed" to employees by the departmental annual leave schedules and/or operation of the 1981 contract; (2) the employees would have been granted their accrued annual leave but for the protected union and concerted activity of engaging in an economic strike; and (3) Respondent's actions were discriminatory because employees who returned before 22 December were allowed to use part of their 1983 leave. Respondent replies: (1) Vacations were not vested benefits since, with the exceptions of employees Langman and Henderson, employees had not applied for and received before the strike written approval for leave to be taken during the strike period; '(2) vacations were not, in fact, canceled but simply rescheduled to the end of the strike for legiti- mate business reasons; (3) the Union, not Respondent, chose to extend the strike beyond the end of the year; (4) therefore, the vacations were "lost" by operation of the 1981 contract which required employees to use or lose 15 Respondent's brief quotes Mulholland's cross-examination testimony, on which Respondent heavily relies: [O]n the last day, I balanced .. [the Union's leave proposal] against the economic issues that [Local 2] . . gave, and instead of giving . [Local 2] the leave I gave .. [Local 2] . . 3 percent as-in lieu of the leave. - [Local 2] . proposal for the leave, on The ellipses and insertions demonstrate counsel's difficulty in drafting a coherent synthesis of Mulholland's testimony to produce the desired effect 16 Br. 57 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all annual leave benefits by the -end of calendar year; and, finally, (5) even if employees' rights to 1983 annual leave had been vested at some point, these rights were waived, or bargained away, by the Union in negotiating the 1984 contract. The initial question to be addressed is whether vaca- tion benefits became vested in the employees at any point. I agree with Respondent that by filling out the de- partmental leave charts at the first of the year no rights were created in the employees. The charts were nothing more than a scheduling tool for management to prepare for anticipated workloads and a facility for compliance with the contract's requirement that conflicting vacation requests must be resolved on the basis of strict seniority. Furthermore, employees were not required to take leave on the dates they entered on the leave -charts at the first of the year. If employees were not compelled to take va- cations at the time reflected by the leave charts, it is hardly likely that the contracting parties intended that the employer was nevertheless required to grant it on those dates. Therefore, I reject the General Counsel's contention that the completion of the departmental leave charts early in the year 1983 created additional rights in the employees. However, as the testimony of Malloy and Mulholland discloses, the parties have interpreted prior contracts as vesting employees with annual leave benefits even earlier than the springtime completions of the departmental leave charts. Malloy testified that 26 days of annual leave are credited to employees at the first of a leave year. Mulholland testified that if an employee quits at any time during the a year, he is given his unused portion of the 26 days of annual leave as separation pay if he has given 2 weeks' notice. Under this interpretation, the annual leave is indisputedly "vested" at the first of the year, and can, under the contract, suffer defeasance only by the employees' failing to use their leave in that calendar year. The Supreme Court has held that the if the withhold- ing of earned, or vested, benefits from striking employees is "inherently destructive" of important employee rights, no proof of antiunion motivation is required, even if the employer introduces evidence that the conduct was moti- vated by business considerations.'' On the other hand, "if the adverse effect of the discriminatory conduct on employee rights is `comparatively slight,' an antiunion motivation must be proved to sustain the charges if the employer has come forward with evidence of legitimate and substantial business justification for the conduct."' 8 The Board has held that "comparatively slight" harm to employee interest occurs when, in the face of a strike, an employer merely reschedules, but does not deny, accrued vacation benefits to employees.' 9 However, denying va- cation pay altogether, or even delaying payment of vaca- tion pay when it is due because of a lawful strike has 17 NLRB v. Great Dane Trailers, 388 U S 26, 33 (1967) 18 Id ; see also NLRB v. Brown, 380 U S. 278, 289 (1965). 19 Texaco, Inc., 179 NLRB 989 (1969); Detroit Edison Co.; 206 NLRB 898 (1973), G. C Murphy Co., 207 NLRB 579 (1973); each of which is heavily relied on by Respondent been held by the Board and the Courts to be inherently destructive of significant employee nghts 20 Therefore the issue next which arrises is: were the va- cations merely rescheduled, as Respondent argues; or were they, in effect, canceled, as contended by General Counsel?21 According to Blaylock's memorandum of 4 November: "Any annual leave already scheduled and approved to take place after the strike begins will be rescheduled by the employer due to the critical need for maintaining op- erations." The only leave "scheduled and approved" in writing when the strike began was that of Henderson and Lang- man. But, additionally, as Respondent stipulated, if other employees had formally applied for leave during the strike period, their requests would have been denied. Presumably, all employees would have attempted to take the balance of their 1983 annual leave during the strike, rather than lose it, if they have been allowed to do so. Therefore, all striking employees22 were treated as Hen- derson and Langman; their vacations were "rescheduled" by Respondent until the end of the strike, whether they had submitted written requests, and had them approved, or not. Respondent contends that since the vacations were "rescheduled" until the end of the strike, and since the strike went beyond the end of the year and none of the strikers had taken the balance of the 1983 leave benefit by the end of that year, and since the contract provided that all employees must "use or lose" their vacation ben- efits each year, the vacations benefits were lost by oper- ation of the 1981 contract. The fallacy of this syllogism is obvious: Section 601 of the 1981 contract, which pro- vided that vacation time is lost if not used by year's end, clearly contemplates that the loss is the circumstance of the employees not taking advantage of their vacation rights by making application for, and taking after receiv- ing written approval of, use of the annual leave. It does not contemplate the circumstance of vacation time not being used because of the employer's needs and de- sires.23 Here Henderson and Langman, in writing, re- 20 Cavalier Division of Seeburg Corp, 192 NLRB 290 (1971), enfd 476 F 2d 868 (D C Cir 1973), Cutten Supermarket, 220 NLRB 507 (1975), Borden, Inc, 235 NLRB 982 (1978). 21 The pivotal nature of the factual distinction between rescheduling and canceling employee vacations because they are on strike is demon- strated by the case of Stokely-Van Camp, Inc, 259 NLRB 961 (1982) The Board order in that case was not enforced because the reviewing circuit found, contrary to the Board, that the employer's action fell into the former category rather than the latter. Stokely-Van Camp v. NLRB, 722 F 2d 1324 (7th Cir 1983) 31 Employees who returned from strike by 23 December were granted the privilege of using annual leave for the week between Christmas and New and Year, as discussed above in section III,B,(1). This discriminato- ry treatment falls squarely within the holding of NLRB v Erie Resistor Corp, 373 U.S 221 (1963), and prevents Respondent from contending that it treated all employees equally 33 In that case the provisions of sec. 604 apply, and the employee is paid "for the leave in order that they will not forfeit the earned leave they ordinarily would have used during a leave year." This clause further defeats any attempt to distinguish Cavalier Division, etc, and the other cases cited at fn 20 on the basis that in those cases vacation pay was to be paid if the vacations were not taken by a certain time, herem that time was, by operation of sec 604, 31 December GOVERNMENT EMPLOYEES 391 quested and received approval to take annual leave during the period of the strike; the remainder of the em- ployees would presumably have done so, rather than lose the benefit, if they could have. Therefore, the "resched- uling" became a "cancellation" as soon as Respondent decided to invoke its spurious interpretation of section 601 of the contract against the employees who would not have been in a "use or lose" position at the end of the year but for Respondent's announced intention to refuse to grant approval for leave to be used after the strike began. Respondent contends that the timing of the strike was not of its doing. It was not, but its invocation of the "use or lose" provision of the 1981 contract was. It was not compelled to treat the annual leave benefits as defeated by the turning of the calendar on 1 January 1984. It chose to do so in order to punish those who were on strike, as evidenced by Mulholland's statements that Re- spondent would not "reward" employees for striking and by Respondent's allowing the seven returnees not only to use their leave for the Christmas vacation period, but al- lowing them to borrow 1984 leave to cover that period which the office was closed, if they had already expend- ed their 1983 leave benefit. This is "discrimination" is its purest form.24 Therefore, Respondent's action was a cancellation, not a "rescheduling" of the vested annual leave benefit of the striking employees. This is not conduct which has a "comparatively slight" impact on employees' rights; it was inherently destructive of an important employee right, the right to strike .2S For this reason, and the fact that Respondent's policy was effectuated on a discrimina- tory basis, its purported "business justification" for its action need not be considered." s Finally there arises the question of whether the Union bargained away the vested rights of the striking employ- ees to annual leave by raising the issue in the final phases of negotiations and then signing a contract without any provision covering the "lost" 1983 leave. As the above extensive quotation of Mulholland's testimony on direct examination about the course of bargaining reflects, Re- spondent gave no consideration to the Union's proposal that the 1983 annual leave of the unit employees be re- stored. Mulholland was adamant; the employees were not going to be "rewarded" for going on strike. This was Respondent's position even before Mulholland said it in bargaining, as reflected by Blaylock's memorandum to employees on 4 November. As his testimony on direct examination reflects, Mulholland attended the late bar- gaining sessions with this predetermined attitude and, on this issue, his presence was only for the purpose of an- 24 Even if nonstrikers, or early returnees, had not had their vacation pay withheld, it would not lessen the discriminatory motivation disclosed by Respondent's action Cavalier Division of Seeburg Corp, supra at 298 2s See case above at fn 20 26 Even it were to be considered, it is no more justification than any employer has in any strike, there was work to be done This "justifica- tion" has never been held to license such destruction of important em- ployee rights as took place when Respondent canceled the employees' 1983 vacations Additionally, there was no arguable "business justifica- tion" for not allowing the striking employees to take annual leave be- tween Christmas and New Year's Day, the office was closed then, and no "business" was being conducted nouncing the predetermined position. This is not bargain- ing. As the Board has recently held, where a party is at- tending a meeting only for the purpose of announcing a predetermined position, it is not meeting "for the pur- pose of - bargaining" under Sections 8(d) and 8(a)(5) of the Act.27 That is, there was no bargaining at all on this topic, and the Union could not have "waived" the strik- ing employees' rights to their vested benefits of 1983 annual leave by submitting a request which was perfunc- torily rejected from the time of its presentation. Therefore, Respondent has discriminatorily withheld from the striking employees vested vacation benefits they would have received but for Respondent's preannounced determination to deny annual leave to all employees be- cause they have been on strike, 28 and the Union did not waive the employees' rights to these accrued benefits by attempting to get Respondent to bargain on the issue. Accordingly, the conclusion is compelled that Respond- ent violated Section 8(a)(3) and (1) by its conduct of withholding from employees their vested 1983 vacation benefits because they engaged in an economic strike. Moreover, since Respondent announced its action on 4 November without prior notification to or consultation with the Union, its conduct further violated Section 8(a)(5) of the Act. Stokely-Van Camp, 259 NLRB 961 (1982); MCC Pacific Valves, 244 NLRB 931, 936 (1979). CONCLUSIONS OF LAW 1. The Respondent, American Federation of Govern- ment Employees, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office and Professional Employees International Union, Local 2, is a labor organization within the mean- ing Section 2(5) of the Act. 3. All permanent employees including probationers, term employees and certain field clerical positions who are included in the appropriate bargaining unit as set forth by the NLRB in its decision clarifying the bargain- ing unit (Cases 5-UC-82, September 10, 1976, and 5- UC-137, November 28, 1980), employed by Respondent at its National Headquarters and Respondent's Districts, including attorneys assigned to those districts, and field political organizers; excluding all supervisors, managerial employees, guards, confidential employees and Personnel Department employees as defined by the NLRB, and National Representatives and Organizers, Building Engi- neers and Building Staff employees, constitutes a unit ap- propriate for the purposes of collective bargaining within, the meaning of Section 9(b) .of ,the Act. 4. At all times material herein the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning Section 9(a) of the Act. 5. By interrogating an employee with regard to her protected concerted, and union, activities Respondent has violated Section 8(a)(1) of the Act. 27 North Coast Cleaning Service, 272 NLRB 1343 (1984) 28 NLRB- v. Great Dane Trailers, supra 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. By threatening an employee with unspecified repris- als because she had engaged in protected concerted, and union, activities, Respondent has violated Section 8(a)(1) of the Act. 7. By promising its employees payment of money or other items of value, if they abandon a lawful economic strike and return to work, Respondent has violated Sec- tion 8(a)(1) of the Act. 8. By refusing to confer accrued vacation benefits on employees eligible for such benefits because of the em- ployees' protected strike activity, Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 9. By unilaterally terminating the vacation benefits of employees in the unit described above without first noti- fying or bargaining with the Union, Respondent has vio- lated Section 8(a)(5) and (1) of the Act. 10. Respondent has not, except as specifically found above, violated the Act as alleged in the complaint. 11. By prohibiting employees from wearing protected union insignia, Respondent has violated Section 8(a)(1) of the Act. REMEDY Having found that Respondent engaged in unfair labor practices, I shall recommend that Respondent be direct- ed to cease and desist therefrom and take the additional affirmative action necessary to effectuate the purposes of the Act. I shall specifically recommend that Respondent be ordered to pay vacation pay, with interest thereupon to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977), to all employees who had part or all of their 1983 vacation pay withheld as de- scribed herein. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed29 ORDER The Respondent, American Federation of Government Employees, AFL-CIO, Washington, D.C., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees about their protected con- certed, or union, activities. (b) Threatening employees with unspecified reprisals because they have engaged in protected concerted, or union, activities. (c) Soliciting strikers to abandon lawful strikes by promising striking employees payment of money or other things of value if they abandon a strike and return to work. (d) Withholding vacation benefits or in any other manner discriminating against its employees in regard to hire, tenure of employment, or any other terms and con- ditions of employment, to encourage or discourage mem- bership in any labor organization. (e) Unilaterally terminating, or modifying the vacation rights of economic strikers without bargaining with the Union. (f) Prohibiting emloyees from wearing protected union insignia. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole, with interest, all employees in the unit found appropriate herein for that amount of vaca- tion pay which was unlawfully withheld from them. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Washington, D.C., place of business copies of the attached notice marked "Appendix."30 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to emplpoyees are customarily posted. Reasonable steps shall be takers by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 29 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."