Nuclear Fuel Services, Inc.

NUCLEAR FUEL SERVICES Nuclear Fuel Services, Inc. and Oil, Chemical & Atomic Workers International Union , Local 3- 677. Case 10-CA-21201 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On February 10, 1986, Administrative Law Judge William N. Cates issued the attached deci- sion. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Re- spondent 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 for the reasons stated below and to adopt the recommended Order. This case concerns the Respondent's refusal to grant vacation pay to striking employees. In Texaco, we held that the question whether an em- ployer violates Section 8(a)(3) or (1) by refusing to continue benefit payments to a disabled employee on commencement of a strike will be resolved by applying the test for alleged unlawful conduct ar- ticulated by the Supreme Court in Great Dane. Under this test, the General Counsel bears the prima facie burden of proving at least some ad- verse effect of the benefit denial on employee rights. The General Counsel can meet this burden by showing that ( 1) the benefit was accrued and (2) the benefit was withheld on the apparent basis of a strike. 2 The burden then shifts to the employer to come forward with proof of a legitimate and sub- stantial business justification for its cessation of benefits by proving waiver or by demonstrating re- liance on a nondiscriminatory contract interpreta- tion that is reasonable and arguably correct . 3 If the employer proves business justification , the Board may nevertheless find that the employer has com- mitted an unfair labor practice if the conduct is demonstrated to be "inherently destructive" of im- portant employee rights or motivated by antiunion intent.4 ' Absent evidence of actual discriminatory intent , the judge's analysis of the instant case is consistent with Texaco. Inc, 285 NLRB 241 (1987), especially in his use of the test set forth in NLRB Y Great Dane Trailers, 388 U S 26 (1967). 2 Texaco, Inc, supra. 'Id 4 Id. 309 The Texaco analysis of the Supreme Court's Great Dane test for unlawful conduct is applicable to the instant case. Applying the Texaco principles to the facts here, we find that the General Counsel has not established a prima facie case of 8(a)(3) and (1) conduct concerning the Respondent's failure and refusal to grant vacation benefits to striking employees. Whether the General Counsel has met the prima facie burden of proving that the vacation benefits were due and payable, and therefore accrued, on the date the Respondent withheld them depends on an interpretation of the collective-bargaining agree- ment.5 The contract here provides for unit employ- ees to have paid vacations of varying durations de- pending on each employee's length of service. It also contains provisions concerning the scheduling of employees' vacation periods. We agree with the judge that the contract does not provide for pay- ment for vacation pay in lieu of vacation but, rather, contemplates employees' taking time off. After the strike began, however, the Respondent received from the Union and individual employees a number of requests, which the Respondent denied, for the employees to be "paid" their vaca- tion benefits or given their "vacation pay." As the employees were on strike, and thus not working, they made no requests to schedule vacations. As the contract does not provide for vacation pay apart from the taking of a vacation, we find that in requesting vacation pay the Union and the striking employees were seeking a benefit not contained in the contract. Moreover, there is no evidence that the Respondent had ever in practice departed from the terms of the contract and granted vacation pay in lieu of vacation in the past. Accordingly, we conclude that the vacation benefits that the Re- spondent denied were not accrued benefits.° Moreover, even if the requests of the Union and the striking employees were viewed as requests to take vacations, rather than simply requests for va- cation pay, denial of the requests at that time ' Id. at fn 22 and accompanying text. 6 Contrary to our dissenting colleague , we do not find the contract's failure to expressly prohibit the granting of vacation pay in lieu of vaca- tion warrants a finding that such pay was available under the contract. As the judge found, the vacation provisions of the contract contemplate employeeti taking off vacation time, not pay in lieu of vacation In fact, the contract provides for vacation pay in lieu of vacation only in one cir- cumstance-when an employee is discharged As the contract provides for vacation pay in lieu of vacation only in this limited circumstance, and fails to mention it in any other context , we think a claim for pay in lieu of vacation in the circumstances here is unsupported. Additionally, contrary to our dissenting colleague , we do not find that the vacation benefits were shown to be accrued by the testimony of Bailey, the Respondent's human resources manager, that the employees would have received vacation benefits if they had continued to work rather than having gone on strike We agree with the judge that , consid- ering Bailey's testimony in context , Bailey was merely stating a "truism." 290 NLRB No. 42 310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would not have been unlawful. Thus, article 8, sec- tion 4 of the agreement provides that employees must work at least 8 hours on the last scheduled workday before their vacation begins. The employ- ees here did not meet this requirement because they were on strike, and thus not working, when they requested their vacation benefits . Without meeting this requirement, the employees could not satisfy all the conditions necessary to entitle them to take vacations. Therefore, even had they sought to take vacations, their vacation benefits would not have been accrued.? Further, assuming arguendo that the General Counsel did establish a prima facie case , the Re- spondent has established a legitimate and substan- tial business justification for its refusal to grant va- cation benefits to striking employees. The Re- spondent demonstrated its reliance on a nondis- criminatory contract interpretation, which is rea- sonable and arguably correct. Article 8 of the col- lective-bargaining agreement provides for employ- ees' vacation with pay; it does not, however, pro- vide for vacation pay separate from taking vacation time off. As article 8, section 4, requires that em- ployees work at least 8 hours on the last scheduled workday before and at least 8 hours on the first scheduled workday after vacation, it is, at the very least, reasonable to construe article 8 as contem- plating that employees be in work status prior to taking a vacation . Moreover, a common under- standing of "vacation" is a respite from work. Be- cause the Respondent's contract interpretation is reasonable on its face and is consistent with the common understanding of "vacation," and there is no explicit contract language, bargaining history, or controlling past practice to the contrary, we find that the Respondent has established a sufficient rebuttal, even assuming that the General Counsel had made out a prima facie case.8 " In Texaco, Inc., supra, the employees' right to the benefits had ac- crued because they had accumulated the contractually specified period of employment credit and became eligible to receive the benefit due to sick. ness or disability prior to strike . Here, the dispute involves that aspect of the contractual eligibility test, which determines when employees earn the right to receive vacation benefits . Art. 8, sec 4, supports the Respond- ent's contention that employees normally are eligible to schedule vaca- tions only in between periods of active work . Unlike the instant case, the employees in Texaco and Amoco Oil Co., 285 NLRB 918 (1987), were al- ready receiving their benefits when the strike began , so their benefits clearly were accrued. Also distinguishable from the instant case is Bil-Mar Foods, 286 NLRB 786 (1987), in which the collective-bargaining agreement required em- ployees to be "on the employer's payroll" as of July I in order to receive vacation pay. It did not require employees' on-the-Job presence on that date for eligibility, like the contract here. (Chairman Stephens did not regard the benefits in Amoco as accrued, but that, of course, does not conflict with his conclusion that the benefits here likewise are not ac- crued benefits.) a As our dissenting colleague points out , in concluding in Texaco, supra, that the respondent 's contractual interpretation there was no more than post hoc rationalization , we noted that the respondent made no con- Additionally, we agree that, for the reasons the judge stated, the Respondent's denial of requested benefits was not inherently destructive of important employee rights or motivated by antiunion intent. The complaint further alleges that the Respond- ent's denial of vacation benefits violated Section 8(a)(5) of the Act. As we have concluded that under the contract the employees were not entitled to vacation pay in lieu of taking vacation and, fur- ther, were required to work on the last scheduled workday in order to be entitled to take vacation, it follows that the Respondent did not violate Section 8(a)(5) by denying the requests of the Union and the striking employees for vacation benefits. Accordingly, we shall dismiss the complaint. ORDER The recommended Order of the administrative law judge is adopted, and the complaint is dis- missed. MEMBER CRACRAFT, dissenting. Contrary to my colleagues, I find that the Re- spondent violated Section 8(a)(5), (3 ), and (1) by denying employees' requested vacation benefits. Under Texaco, Inc., 285 NLRB 241 (1987), the General Counsel must demonstrate that the re- quested benefits were accrued, that is due and pay- able at the time requested, and were withheld on the apparent basis of a strike. Article 8, section 1, of the parties' collective-bargaining agreement states that employees who worked at least 1000 hours during a 12-month period are entitled to specified amounts of vacation with pay, depending on their length of service.' The only discretion the contract affords the Respondent in granting vaca- tions is to limit the number of employees on vaca- tion at any one time to no more than 25 percent of a unit, group, shift, or area. The Respondent's human resources manager, Bailey, testified that the employees for whom the Union requested vacation benefits would have been entitled to the benefits but for the strike. He further testified that the 25- percent limit had nothing to do with the denial of benefits. temporaneous reference to contract interpretation when announcing the suspension of benefits . We also pointed out, however , that the respond- ent's announcement and its principal defense turned on the noncontrac- tual argument that it should legally be entitled to presume that disabled employees are strikers . Moreover, we specifically found that the respond- ent's contractual interpretation argument was both unreasonable and not arguably correct In any event , we find that in the circumstances here, particularly the fact that the contract clearly does not provide the bene- fits requested, the Respondent's failure to offer a reason for its denial of requests for vacation pay at the time of the requests does not preclude the Respondent from establishing reliance on a nondiscriminatory con- tract interpretation that is reasonable and arguably correct. i See sec III,A, of the judge's decision , which sets forth the contrac- tual vacation pay provisions. NUCLEAR FUEL SERVICES Because the striking employees were entitled to vacation benefits according to the contract terms and according to Bailey's testimony, the benefits were accrued. Therefore, the Respondent's denial of the accrued benefits based on the strike estab- lishes a prima facie case of 8(a)(3) and (1) conduct. Consequently, under Texaco, the burden shifts to the Respondent to prove a legitimate and substan- tial business justification, i.e., waiver or reliance on a nondiscriminatory contract interpretation that is reasonable and arguably correct.2 In its brief supporting the judge 's decision, the Respondent asserts that the collective-bargaining agreement does not provide for vacation pay as an alternative to time off and that there is no evidence the Respondent ever paid employees vacation pay in lieu of vacation. The Respondent also points out that article 8, section 2, states that vacation cannot be accumulated and carried over into a subsequent anniversary year. The Respondent contends that the denial of benefits here is consistent with its past practice established in 1979 of postponing vacations until after the strike. Although the Respondent accurately states that the contract does not specifically provide for vaca- tion pay in lieu of time off, neither does the con- tract specifically prohibit it. The contract simply provides that the Respondent pay an employee for a specific time period during which the employee does not have to work , if the employee has worked at least 1000 hours. Therefore , for employees who satisfied the 1000-hour requirement, the right to va- cation pay had accrued. The Respondent's conduct during the 1979 strike does not advance its business justification argument for two reasons. First, there were no requests for vacation benefits during the 1979 strike because that would have made the strikers ineligible for food stamps. Thus, the Respondent did not deny requested vacations in 1979. Second, the Respond- ent's 1979 postponement of vacation until after the strike was pursuant to a strike settlement agree- ment, which did not purport to interpret the par- ties' collective-bargaining agreement . Consequent- ly, the 1979 vacation postponement, based as it was on a strike settlement agreement, cannot serve to demonstrate the Respondent's reliance in the in- stant case on a reasonable and arguably correct nondiscriminatory interpretation of the vacation pay provisions in the collective-bargaining agree- ment. 311 In finding that the benefits did not accrue or, al- ternatively, that the Respondent rebutted the Gen- eral Counsel's prima facie case, my colleagues rely on the contract provision requiring employees to work their last scheduled workday before and first scheduled workday following their vacation. Even the Respondent, however, did not assert that it relied on this provision in denying vacation bene- fits. Texaco plainly states that it is the employer's burden to "demonstrat[e] reliance" on a particular contract interpretation.3 Indeed, in Texaco the Board rejected the employer's belated contract in- terpretation as nothing more than a "post hoc ra- tionalization."4 The majority's attempt to create a business justification for the Respondent is incon- sistent with Texaco, the very case on which the majority relies. The majority's willingness to mount the Respondent's defense for it is similar to the Fifth Circuit's speculation on the employer's moti- vation in Great Dane, which the Supreme Court held was a reversible error . NLRB v. Great Dane Trailers, 388 U.S. 26, 35 (1967). Further, I simply cannot subscribe to the mean- ing my colleagues devise for article 8, section 4. The provision must be read in its industrial context to ascertain its meaning . By requiring an employee to work before and after vacation, the provision was not meant to serve as a condition precedent to the accrual of vacation benefits , as the majority in- terprets it. Rather, the provision is disciplinary in nature; it prevents employees from extending their scheduled vacations by taking a sick day or leave without pay before or after their scheduled vaca- tion. I do not believe such a requirement warrants finding in the circumstances of this case that vaca- tion benefits had not accrued or that the require- ment constitutes a reasonable and arguably correct contract interpretation. As the Respondent has not demonstrated its reli- ance on a nondiscriminatory contract interpretation that is reasonable and arguably correct, and as the contract provision on which the majority relies would not serve as a substantial and legitimate business justification even if the Respondent had relied on it, I would find that the Respondent vio- lated Section 8(a)(3) and (1) by denying requested vacation benefits to striking employees. I would further find that by denying the request- ed vacation benefits, the Respondent has unilateral- ly changed terms and conditions of employment without bargaining with the Union and has thereby violated Section 8(a)(5) of the Act. ' Texas, supra. 2 285 NLRB 241 4 Id. 312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Victor McLemore and William E. Caldwell, Esqs., for the General Counsel. Neil J. Newman, Esq., of Rockville, Maryland, and Law- rence S. Westcott, Esq. (Venable, Baetjer & Howard), of Baltimore, Maryland, for the Respondent. Helen deHaven, Esq., of Knoxville, Tennessee, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. This case was tried at Erwin , Tennessee, on 10 December 1985.1 The charge was filed by Oil, Chemical & Atomic Workers International Union , Local 3-677 (the Union), on 9 September, and the complaint issued on 23 October alleging that Nuclear Fuel Services, Inc. (Respondent) violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act) by refusing on and after 20 May to grant its employees, then on strike , accrued vacation benefits as requested by the Union . Because Re- spondent conceded that it has not paid accrued vacation benefits to strikers during the course of the strike, which still continued at the time of the hearing, the sole issue presented in the case is whether Respondent had legiti- mate business justifications for its conduct. On the entire record , including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel , Respondent, and the Union, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Maryland corporation with an office and place of business located at Erwin, Tennessee, where it is engaged in the manufacture of nuclear fuels . During the calendar year preceding issuance of complaint, Re- spondent purchased and received at its Erwin , Tennessee facility goods valued in excess of $50,000 directly from suppliers located outside the State of Tennessee. The complaint alleges, Respondent by its answer admits, and I find that Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint further alleges, Respondent admits, and I further find the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Material Facts The facts in this case are not in dispute. Respondent and the Union have been parties to successive collective- bargaining agreements since at least 1972 covering Re- spondent's employees in a production and maintenance I All dates are in 1985 unless otherwise indicated unit.2 The most recent such agreement was effective 15 May 1982 until 15 May 1985. Immediately on expiration of the most recent agreement , the unit employees ceased work and engaged in an economic strike. As indicated earlier, that strike continued at the time of the hearing. The complaint alleges and the answer admits that on 20 May representatives of the Union requested that Re- spondent pay striking employees their accrued vacation benefits provided for under the expired collective-bar- gaining agreement . Roland Bailey, Respondent's human resources manager and a participant in negotiations with the Union, declined the Union's request by telling the union representatives that vacation was going to be han- dled the same as it had been in 1979, that when the strike was over the employees would come back, that they would pick up their vacation as if the strike period of time had never happened. In short, the returning strikers would have whatever time remaining from the time they reported back to work to take their vacations as if the strike had not occurred. Bailey's reference to 1979 was an allusion to the 1979 strike by unit employees when Respondent, as part of a strike settlement agreement with the Union, granted re- turning strikers their accrued vacation time or pay in lieu of vacation at Respondent's option . However, this provi- sion of the settlement agreement specifically precluded reliance on it as precedent for pay for unused vacation. Despite repeated requests by the Union at various sub- sequent times for vacation pay for the strikers , Respond- ent adhered to its position. 3 Moreover, with respect to at least one inquiry by an individual striker about vacation pay on 7 November, Bailey advised the employee in writing that, "In accordance with our past practice, va- cation of all bargaining unit employees are being re- scheduled during the period of the labor strike due to production requirements ," and "[w]hen the strike has ended, the Company will be pleased to discuss re-sched- uling of your vacation." Article 8 of the expired collective-bargaining agree- ment between the parties is captioned , "Vacations and Vacation Pay" and sets forth the eligibility requirements for vacations. Thus, section 1 captioned, "Paid Vaca- tions" provides: The Company shall grant employees vacations with pay under the following conditions: (a) One week. An employee who has worked not less than one thousand (1000) hours during a period of not less than twelve (12) months fol- 2 More specifically, the appropriate unit alleged in the complaint and admitted by Respondent has been, and is- All production and maintenance employees, laboratory assistants, laboratory technicians, plant clerical employees, surveillance techni- cians, and radiation monitors employed by the Respondent at its Erwin, Tennessee facility, but excluding all office employees, office clerical employees, laboratory employees, other than laboratory as- sistants and laboratory technicians, technical, professional, and and sales employees, foremen, watchmen, guards, and supervisors as de- fined in the Act Employees who were on vacation at the beginning of the strike, however, were paid for the rest of the workweek in which the strike began. NUCLEAR FUEL SERVICES lowing the anniversary date of his/her last regu- lar employment shall be eligible for one (1) calen- dar week of vacation and shall receive forty (40) hours pay at his/her regular rate. Subparagraphs (b) through (f) of the section provide for additional Weeks of vacation on a graduated basis based on the employee's length of service with Respondent. Section 2 captioned, "Vacation Period" provides: Employees will be allowed a total of fifteen (15) ohe-day vacation days which may be taken as ten (10) sick days (under a strict definition of sickness) or•,ten (10) scheduled and five (5) unscheduled one day vacation days provided that the Company shall not be required to allow more than 25 % of a unit, group; shift, or area to be on vacation at any one time. Vacations may be scheduled up to 4:00 p.m. on Monday prior to shift scheduling on Wednesday. Requests for unscheduled one-day vacations must be received by the Company one (1) hour prior to shift. change. Vacation earned during one anniversa- ry year provided in Section 1 of this article shall be taken in the anniversary year or immediately there- after. In no case shall a vacation period be permit- ted to accumulate and carry over into any subse- quent anniversary year. Each employee's vacation period shall be designated by the Company to meet the requirements of operating conditions provided, however, that the period preferrable to the employ- ee on a unit seniority basis shall be selected when- ever possible. In the event the Company determines that operating conditions require part or all the Erwin Plant to be shutdown for vacation period, the Company will give the affected employees at least fifteen (15) calendar days prior notice. Dis- charged employees shall be paid for vacation earned up to the time of discharge. Section 3 provides for the rate of pay for vacations as follows: (a) The rate of pay for vacation period shall be the employee's regular rate at the beginning of his/her vacation period. (b) An employee will receive vacation pay prior to his/her vacation providing that a minimum of fourteen (14) days advanced written notice is given and a minimum of one week's vacation is taken. Section 4 requires that the employee work on both the scheduled workday before and after vacation and states: Employees paid under Section 1 of this Article shall be required to work at least eight (8) hours on their last scheduled work day before their vacation begins and at least eight (8) hours on their first scheduled work day after their vacation ends , unless excused by their supervisor. Failure to comply with this provision shall be proper cause for discipline. 313 B. Contentions of the Parties Based on the facts related above and an affirmative re- sponse by Bailey to the General Counsel 's question whether the only reason Respondent had not paid em- ployees vacation benefits was because they were on strike, the General Counsel argues that Respondent's ac- tions constituted discrimination against the strikers in violation of Section 8(a)(1) and (3) of the Act. In this regard, the General Counsel relies on NLRB v. Great Dane Trailers, 388 U.S. 26 (1967); Gulf Envelope Co., 256 NLRB 320 (1981 ); Rockingham Machine-Lunex Co., 255 NLRB 346 (1981); and Jacques Syl Knitwear,.247 NLRB 1525 (1980). The General Counsel also contends that Re- spondent's refusal to pay the vacation benefits constitut- ed a violation of Section 8(a)(5) of the Act because as it constituted a unilateral change without bargaining with the Union. The Charging Party in its brief essentially echoed the General Counsel 's contentions. Although ac- knowledging that Respondent's apparent retaliatory intent in failing to pay the vacation benefits could be re- butted by a showing by Respondent of substantial busi- ness justifications for withholding the benefits, the Charging Party asserts that Respondent here showed no such justification. To the extent that Respondent relied on the vacation accord reached in settlement of the strike with the Union in 1979, the Charging Party con- tends that such accord establishes no past practice in view of the uncontradicted evidence in the record in the form of the testimony of Union President Lonnie Tolley to the effect that the Union in 1979 specifically did not request payment of vacation pay to strikers during the strike because it would have rendered the strikers ineligi- ble to receive food stamps . Moreover, the Charging Party argues that the 1979 strike settlement agreement could not in any event establish a past practice of defer- ral of vacation benefits during the strike since the agree- ment regarding vacation benefits on its face was nonpre- cedential. Respondent contends on the other hand that its failure to pay vacation benefits during the strike was justified by past practice and the prior collective-bargaining agree- ment set out above. Respondent also relies on provisions of article 3 of the agreement , the "management rights" section, which gives Respondent the right to determine "the schedules of production and the assignment of work." More specifically, Respondent asserts there are no requirements that Respondent grant employees vaca- tion pay in lieu of vacation . Although the 1979 strike agreement did allow payment of vacation pay in lieu of vacation, such allowance was at the option of Respond- ent. Further, the settlement in this regard was , by further agreement, precluded from establishing a precedent. Under these circumstances and in the absence of evi- dence that Respondent was attempting to thwart the strike by rescheduling vacations, Respondent argues that its actions were not destructive of employee rights or otherwise discriminatory to employees in violation of Section 8(a)(3) and (1) of the Act. Respondent asserts es- sentially the same arguments in defense of the 8(a)(5) complaint allegations. Thus, there were no unilateral al- terations of employee benefits , according to Respondent. 314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent would distinguish those cases cited by the General Counsel, supra, as involving situations where the employer treated strikers differently from nonstrikers re- garding vacation pay, where the employer 's action in de- nying vacation pay was not in accordance with a recent- ly expired contract or past practice , or where there was no previous collective-bargaining contract at all. These cases are inapplicable to the facts , according to Respond- ent, who relies primarily instead on Texaco, Inc., 179 NLRB 989 (1969), as being more apposite and as substan- tiating the legality of Respondent 's position. C. Analysis and Conclusions The analysis of the issues in this case must begin with Great Dane Trailers, supra, in which the Supreme Court held that where an employer's refusal to pay accrued va- cation pay to striking employees while paying it to non- strikers was "discrimination in its simpliest form" and therefore violative of Section 8(a)(3) and (1) of the Act. The Court went on to state: First, if it can reasonably be concluded that the em- ployer's discriminatory conduct was "inherently de- structive" of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employ- er introduces evidence that the conduct was moti- vated by business considerations . Second, if the ad- verse effect of the discriminatory conduct on em- ployee rights is "comparatively slight ," an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. Thus, in either situation, once it has been proved that the employer has engaged in dis- criminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was moti- vated by legitimate objectives since proof of moti- vation is most accessible to him. [Id. at 34.) In Great Dane, the Court found a violation without as- certaining whether the employer's conduct was "inher- ently destructive" of employee rights, because the em- ployer failed to present any evidence of a legitimate motive for its conduct. The principles in Great Dane are applicable here if not the facts. However, neither the General Counsel nor Charging Party specifically argues that Respondent's ac- tions were "inherently destructive" of important employ- ee rights. Conduct of an employer is inherently destruc- tive if it "carries with it 'unavoidable consequences which the employer not only foresaw but which he must have intended,' and thus bears its own indicia of intent." Id. 388 U.S. at 33, quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 228, 231 (1963). Inherently destructive con- duct has also been defined as that conduct which has "far reaching effects which would hinder future bargain- ing, or conduct which discriminates solely upon the basis of participation in strikes or union activity," Portland Williamette Co. v. NLRB, 534 F.2d 1331, 1334 (9th Cir. 1976), or "that which creates visible and continuing ob- stacles to the future exercise of employee rights ." Inter- Collegiate Press v. NLRB, 486 F.2d 837, 845 (8th Cir. 1973). To the extent the General Counsel and the Charging Party rely on Bailey's concession that Respondent failed to pay the vacation benefits due to the strike, I find such concession does not establish an express intent to dis- criminate against employees which might be considered "inherently destructive" of their rights. Bailey's conces- sion, particularly considered in the context of his preced- ing affirmative response to the General Counsel's ques- tion of whether the employees would have received their vacation benefits if they continued to work after May 20 (i.e., if they were not on strike) was, I conclude, a truism rather than an admission of discriminatory intent. More- over, no other evidence of union animus on the part of Respondent was shown in this case which might throw a different and more sinister light on Bailey's concession. And there was no evidence here that Respondent treated strikers differently from nonstrikers which would indi- cate an intention to penalize strikers . I therefore find Bailey's admission does not evince discriminatory intent substantiating a finding of "inherently destructive" con- duct. The case sub judice unlike the situation in Great Dane also involves delayed payment of accrued vacation bene- fits rather than an outright refusal to grant such benefits. At least one court has held that delayed payment of va- cation benefits to strikers does not constitute "conduct which bears it own indicia of intent carrying with it un- avoidable consequences which the employer must have intended." NLRB v. Borden, Inc., 600 F.2d 313, 321 (1st Cir. 1979). The Board itself has indicated in its holdings in Texaco, supra, and Detroit Edison Co., 206 NLRB 898 (1973), that postponing vacation benefits during a strike is not, without more, unlawful . Accordingly, I conclude Respondent's conduct in this case cannot be catagorized as "inherently destructive."4 Further, in light of this con- clusion, the adverse effect of Respondent 's alleged dis- criminatory conduct must be regarded as `comparatively slight."5 Therefore, under Great Dane, and because Re- spondent has come forward with a claimed business justi- fication, antiunion motivation must be proven . Respond- ent's business justification must be carefully examined to determine whether it reflects such antiunion motivation. Here, Respondent relies on the provisions of the expired 4 Based on this same reasoning , I reject the argument of the General Counsel asserted for the first time in his posthearing brief that Respond- ent's denial in its answer of par 12 of the complaint alleging the refusal to grant employees accrued vacation benefits was a sham interposed for delay in breach of Rule II of the Federal Rules of Civil Procedure The General Counsel's argument was that Respondent's counsel must have known of Respondent 's refusal to pay vacation benefits in light of Bai- ley's "admission" at the hearing discussed above Regardless of Bailey's "admission," I do not view Respondent's denial in its answer as inconsist- ent with its legal position that it had not refused to pay vacation benefits to the striker but rather had postponed paying them s As noted, because the vacation benefits have been delayed by Re- spondent 's action rather than eliminated the strikers have lost little As the court observed in Stokely- Van Camp, 722 F 2d 1324 at 1330-1331 (7th Cir. 1983), a case involving similar circumstances, "The only thing [the striker] 'lost,' was the opportunity to receive wages for work performed for all weeks after [the end of the strike], which opportunity supposedly would have arisen if vacations had been paid during the strike " NUCLEAR FUEL SERVICES collective-bargaining agreements and past practice. If satisfactorily established , these justifications would suf- fice to rebut the violations alleged. See Vesuvius Crucible Co. v. NLRB, 668 F.2d 162 (3d Cir. 1981). Moreover, the establishment of such business justification would further serve to distinguish this case factually from Great Dane as well as the other cases cited by the General Counsel, supra. Considering first past practice, it is to be observed that the record establishes only one time in the past, 1979, when Respondent experienced a strike during which va- cation benefits were not paid . Although the record (statements of counsel) alludes to other strikes the record is silent regarding vacation benefits during such strikes. Respondent's failure to pay benefits during the 1979 strike would appear to be diminished in its precedential value because there was no evidence that the Union re- quested payment of benefits on behalf of the strikers during the strike. There was no evidence that any indi- vidual striker sought to receive vacation benefits during the strike. Although the failure by the Union or individ- ual strikers to seek benefits during the strike might sug- gest an understanding on their part that they were due nothing, the existence of such an understanding is specifi- cally refuted by the uncontradicted and credible testimo- ny of Union President Lonnie Tolley who explained that vacation benefits were not sought because it would have adversely impacted on strikers' eligibility for food stamps. Moreover, the terms under which vacation bene- fits were paid to employees after conclusion of the 1979 strike were as much a product of the strike settlement as they were the collective-bargaining agreement under which they initially accrued . Further, the stipulation in the strike settlement provisio on payment of vacation pay in lieu of paid time off at the option of the Company spe- cifically precluded future reliance on the provision as precedent. Nevertheless, the uncontradicted and credible testimony of Ray Charles Rice, former human resources representative of Respondent , establishes that consistent with Respondent's position and its views of the collec- tive-bargaining agreement, Respondent canceled vaca- tions of, and did not pay vacation benefits to, strikers during the 1979 strike even though some of them were scheduled before to the strike to start their vacations after the strike began . This evidence at least confirms Respondent's institution of a practice of not paying vaca- tion benefits to strikers. The existence of this practice, albeit not a longstanding one, tends to support Respond- ent's "business justification." Considering next the expired collective-bargaining agreement, it is clear such agreement is silent on vaca- tion benefits during the course of a strike . It is equally clear that the agreement does not provide for payment to employees of vacation pay in lieu of vacation. On the contrary, sections 3 and 4 of article 8 dealing with vaca- tions appear to contemplate employees taking vacation It is well established that the policies of Sec . 8(aX5) of the Act re- quire that the terms of a collective-bargaining agreement relating to man- datory subjects of bargaining may not be unilaterally changed without notice to, and negotiation with, the other party to the agreement even though the agreement has expired . See Hen House Market No. 3 Y. NLRB, 428 F 2d 133 (8th Or. 1970) 315 time off. Aside from the provisions of the 1979 strike set- tlement agreement, the record is silent regarding any practice in granting vacation pay in lieu of vacations. As already noted, while the 1979 strike settlement agreement did allow Respondent to grant pay in lieu of vacation at its option, the agreement by its express terms established no precedent. It thus appears that there is no contractual basis for concluding that the striking employees were en- titled to accrued vacation pay as opposed to scheduled time off with pay.7 In addition, there was no evidence that despite an absence of a contractual provision allow- ing pay in lieu of vacation Respondent nevertheless in practice granted vacation pay to employees on sick leave or other types of unpaid leave. Thus, there was no de- parture from past practice despite the terms of the bar- gaining agreement to show ulterior motivation or dis- criminatory treatment on Respondent's parts The strikers' entitlement to time off with pay must then turn on whether under the agreement with Re- spondent the strikers or Respondent could determine the scheduling of vacations. The bargaining agreement clear- ly does not specify a calendar period for vacations. Al- though Respondent under the agreement can specify a plant shutdown and vacation with appropriate notice to employees, and has done so in the past, there is no evi- dence that before the strike Respondent had scheduled a shutdown period to take place during the strike here. In this regard, the case is distinguishable from the situation in Wallace Metal Products, 244 NLRB 41 (1979), where the Board found a violation of Section 8(a)(1) and (3) of the Act by an employer who refused to pay strikers' ac- crued vacation pay that, under the terms of the collec- tive-bargaining agreement, was to be paid during a yearly scheduled 2-week shutdown, a shutdown which under the facts of that case coincided with the occur- rence of the strike. As Respondent contends, the bargaining agreement here clearly contemplates control and discretion by Re- spondent in scheduling vacations. Although the agree- ment provides that Respondent cannot be required to allow more than 25 percent of its employees off at one time for vacation, it also provides that an employee's va- cation period shall be designated by the Respondent to meet the requirements of operating conditions provided, however, that the period preferable to the employees on a seniority basis shall be selected whenever possible. Re- spondent could therefore schedule vacations to best meet its operating needs. The record reflects that Respondent continues to operate during the strike utilizing superviso- ry personnel. What percent of normal production it is r Accordingly, the Board 's holding in Seeburg Corp, 192 NLRB 290 (1971), is inapposite. There the Board found a violation in the employer's refusal to pay accrued vacation pay to strikers where the contract specifi- cally allowed pay in lieu of vacation . There vacation pay had accrued before the strike Thus, no "business justification " could be shown by the employer in refusing to pay the vacation benefits. a It is for this reason that the Board 's decision in Stodely-Van Camp, Inc., 259 NLRB 961 (1982), end. denied 722 F.2d 1324 (7th Cir. 1983), is inapposite. In that case, while the employer was not contractually re- quired to pay vacation pay in lieu of vacation , it had granted such pay to employees on sick leave and other leaves of absence Consequently, the Board found the employer was not empowered by the collective-bargain- ing agreement nor past practice to refuse vacation benefits to strikers 316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD achieving is not shown , but there was no plant shut- down. As pointed out by the administrative law judge with apparent Board approval in Texaco, Inc., 169 NLRB 989, 993 (1969), there is a distinct difference between vacation and strike time, and: In vacation time the absence from work is timed to interfere to a minimum degree with a company's operation. For a strike to be effective, the strikers' absence from work must create a maximum interfer- ence with a company's operations. Respondent con- tinued to operate at 85 percent of normal during the strike. It is apparent that during such a situation, the fewer people absent from work for any reason, the easier it is for Respondent to continue its oper- ations. Respondent could not control absences due to strike but under its contract and under past prac- tices, it could control absences due to vacations. Except for the reference to the percent of production achieved during the strike, the above statement can be applied fully to the instant case . If Respondent under the bargaining agreement could control the scheduling of va- cations, it could choose not to schedule such vacations during the course of a strike when its need for employees is most critical and while it is still attempting to operate its facility. The Charging Party's brief appears to argue that Re- spondent's scheduling of vacations was limited by the contractual provision that "the period preferable to the employee on a unit seniority basis shall be selected whenever possible." This argument ignores the clause to which the proviso was attached which allows Respond- ent to schedule vacations to meet its operating needs. Further, the proviso itself by use of the term "whenever possible" grants Respondent further discretion in ascer- taining what is possible in light of its production needs. Obviously, Respondent's operating needs for personnel are greater during the course of a strike. Accordingly, I conclude Respondent , like the employ- er in the Board's Texaco decision,9 supra, was contrac- tually entitled not to schedule vacations during a strike and therefore could withhold vacation benefits. Also as in Texaco, Respondent has not canceled vacation benefits for the strikers but has clearly told the Union in the un- contradicted words of Bailey "that the vacation is going to be handled the same as it had been in 1979; that when the strike was over with, the employees would come back, they would pick up their vacation as if this period of time never happened," and "[they] would have what- ever time remaining from the time they reported back to work that they had in the past ," and that "[i]f it was 2 months, 3 months, to take it, they would have that length of time to take it when they got back." In short, the vacation benefits were simply postponed , not can- celed . There would be no lapsing of vacation benefits, 9 See also G C Murphy Co., 207 NLRB 579 (1973); Detroit Edison Co., 206 NLRB 898 (1973). and the strikers would not be penalized for the strike. Under these circumstances , I conclude Respondent's withholding of vacation benefits during the strike had only a minor impact on the strike which could not over- ride Respondent's business justification. 10 Considering all the foregoing, I conclude Respondent was entitled contractually and by past practice to sched- ule vacation benefits after the strike , so that it had a "business justification" for not paying vacation benefits during the strike . Accordingly, since I conclude that Re- spondent's action was not inherently destructive of em- ployee rights, and in the absence of any independent evi- dence of union animus in Respondent's action or other evidence revealing Respondent 's disparate or inconsistent application of the collective-bargaining agreement provi- sion on vacations" showing Respondent intended to dis- courage union membership, I find and conclude that Re- spondent did not violate Section 8 (a)(3) and (1) of the Act as alleged . I further find and conclude that since Re- spondent's actions were in accord with the terms of the expired collective-bargaining agreement, Respondent made no unilateral changes violative of Section 8(a)(5) and (1) of the Act. I shall recommend that the complaint be dismissed in its entirety. On the foregoing factual findings and conclusions, I reached the following CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(1), (3), and (5) of the Act by not paying vacation benefits to strikers during the course of the strike. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- edla ORDER The complaint is dismissed. 1° In reaching this conclusion , I also note that Respondent made no an- nouncement before the strike that it would withhold benefits during the strike Such an announcement could be viewed as an effort to dissuade employee-, from striking . On the contrary , Respondent even allowed em- ployees on vacation at the time the strike began to continue their vaca- tion for the remainder of the workweek in which the strike began I do not view this conduct a s inconsistent with Respondent's position. See Texaco, supra. I I It was the inconsistent application of the contractual provision on vacation benefits which most persuaded the Board in Borden. Inc., 248 NLRB 387 (1980), enfd. 645 F 2d 87 ( 1st Cir. 1981 ), cited in Charging Party's brief, to find that the employer's refusal there to pay benefits to strikers was intended to discriminate against them and discourage their union activity Borden is distinguishable because there is no evidence of an inconsistent application here. 12 If no exception % are filed as provided by See. 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 %hall be deemed waived for all pur- poses.