Texaco Inc.

TEXACO INC 525 Texaco, Inc and Office and Professional Employees International Union, AFL-CIO, Local No 66 Case 23-CA-8923 October 31 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 16 1982 Administrative Law Judge Hutton S Brandon issued the attached deci sion The General Counsel filed exceptions and a supporting brief and the Respondent filed a brief in reply 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 ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed I We adopt the judge s dismissal of the complaint for the reasons set forth in the Board s decision in the companion case reported at 291 NLRB No 86 issued this day Member Cracraft concurs for the reasons set forth in her concurrence in the companion case notice to or bargaining with their collective bargaining representative by announcing at the advent of a strike by its employees that on commencement of the strike pres cheduled vacations would be canceled 2 On the entire record including by observation of the demeanor of the witnesses and after due consideration of the briefs filed by the General Counsel and Respondent I make the following i FINDINGS OF FACT I JURISDICTION Respondent is a Delaware corporation with offices and plants in various States in the United States including their place of business at Port Arthur Texas known as the Port Arthur plant and terminal where it is engaged in the manufacturing refining sale and distribution of petroleum products The Port Arthur plant and terminal is the only facility involved in this proceeding During the 12 month period preceding issuance of complaint Respondent in the course and conduct of its business op erations manufactured refined sold and distributed products valued in excess of $50 000 which products were shipped from its Port Arthur plant and terminal di rectly to points located outside the State of Texas The complaint alleges Respondent in its answer admits and I find that Respondent is now and has been at all times material an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act The complaint further alleges Respondent admits and I find that the Union is now and has been at all material times a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICE Robert S Breaux Esq for the General Counsel David R Shed Esq of Houston Texas for the Respond ent Harold Bosarge of Port Arthur Texas for the Charging Party DECISION STATEMENT OF THE CASE HUTTON S BRANDON Administrative Law Judge This case was tried at Port Arthur Texas on August 5 6 and 12 1982 t The charge was filed by Office and Professional Employees International Union AFL-CIO Local No 66 (the Union) on May 19 and the complaint was issued on July 1 The complaint alleged that Texaco Inc (Respondent or the Company) violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by unilaterally without notice to or bargaining with the Union implementing on or about January 7 a vacation policy affecting employees in a unit of employ ees of Respondent represented by the Union The issue presented is whether Respondent unilaterally changed the conditions of employment of its employees without I All dates are in 1982 unless otherwise stated A Material Facts It is undisputed that the Union is the collective bar gaining representative of Respondents employees in a unit of office employees of Respondent at its Post Arthur plant and terminal The Union and Respondent were par ties to collective bargaining agreements covering the unit employees over the past several years The last such agreement in effect before the events giving rise to the instant case was effective by its terms for the period from January 8 1979 through January 7 1981 but it was subsequently extended to January 7 1982 3 Negotiations on a new collective bargaining agreement to succeed the prior agreement as extended began in No vember 1981 The negotiations continued up to and in z This issue is identical to one presented involving Respondent and Oil Chemical and Atomic Workers International Union AFL-CIO Local 4- 23 Cases 23-CA-8827 and 23-CA -8854 with which the instant case was consolidated on motion to the General Counsel at hearing on August 5 The General Counsel s further motion made at hearing that the instant case be severed for decision purposes was unopposed and granted An order severing this case from the other number cases issued on Novem ber 2 1982 a The unit description is not fully set forth in the collective bargaining agreement Thus the agreement describes the unit only as that defined and referred to in the decision of February 23 1944 of the National Labor Relations Board (G C Exh 5) 291 NLRB No 87 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cluding a meeting between the parties which ended at 6 26 p in on January 7 but were unsuccessful At that time the Union announced that if the Company was not agreeable to a contract extension they would take strike action at 12 01 a in when the contract extension in effect at that time would expire Respondent through its repre sentatives at the meeting stated it was unwilling to extend the contract Respondents representatives how ever related that while it was not necessary to hold a shut down meeting with the Union as it was doing with other collective bargaining representatives in other units 4 they would want to meet with the Union later in the evening to cover certain areas that needed to be cov ered in the event of a strike Accordingly the parties agreed to reconvene later in the evening At the reconvened meeting Respondent inquired if it was still the Union s intent to strike at midnight and the union representatives replied affirmatively Respondent s superintendent of labor relations J M Lee then distrib uted to the Union s employee negotiating committee a document entitled Employee Relations Procedures in Case of a Strike which contained inter alia the follow mg provision regarding vacations Employees on vacation when a strike commences may continue on vacation status for the balance of the week in which the strike occurs subject to the vacation rules in effect at that time No other vacations will be granted during a strike and vacations scheduled to commence during the strike period will be rescheduled following ter mination of the strike It is undisputed that the strike began on January 8 and was ongoing at the time of this hearing Vacations that had been scheduled for specific periods in 1982 for each employee were canceled at the beginning of the strike The foregoing is established through admissions of Re spondent as well as the minutes of the meetings between the Union and Respondent on January 7 5 The minutes of the January 7 meetings do not reflect any specific pro test by the Union to Respondents action regarding vaca tions However Rodney Hebert president of the Union and a participant in the negotiating meetings testified here that some question was raised concerning vacation and other benefits Hebert then testified that Jack Lang ford an International representative of the Union who was present in the meeting mentioned that there had been some decisions handed down that allowed such payment of vacation pay Nevertheless J M Lee the principal spokesman for Respondents negotiating com mittee replied that the Company s policy was that vaca tion pay would not be paid during the time of the strike Subsequently after the occurrence of the strike in Janu ary and during another meeting with Lee on March 20 Hebert testified that Lee was provided with a copy of a 4 Negotiations with other unions on other employees units at the Port Arthur plant and terminal were taking place concurrently with these ne gotiations It appears that the various collective bargaining agreements had identical termination dates S GC Exh 4 news article regarding a court decision 6 and an NLRB decision? holding to the effect that in the circumstances of these cases accrued vacation time had to be paid strik ers Hebert testified that Lee responded that he would take the matter under advisement and get back with them at a later date Respondent however did not there after change its vacation policy as announced on January 7 Moreover vacation pay for the strikers was not there after discussed between the parties during the strike Hebert conceded that Respondents policy regarding va cations during the strike which was contained in the dis tribution in the second meeting with the Union on Janu ary 7 was not a new policy and on the contrary had been in existence to his knowledge during the 15 years that he had been employed by Respondent Vacations were provided for in article VIII of the col lective bargaining agreement Section A of that agree ment for vacations to employees after 1 year of contin ous service on a graduated basis based on their length of service 8 Section B provided that the administration of vacations would be governed by the vacation rules of the Company currently in effect Those rules9 in turn provided at article VI section A(2) No particular time of the year is designated for va cations It is left to the discretion of the Company to arrange the time of vacation to best suit employ ees convenience and least interfere with the Com pany s operations As far as practical employees wishes as to the date of vacations will be consid ered however it must be recognized that no con siderable number can be absent at one time and that it may not always be possible to grant vacation at exactly the desired date B Contentions of the Parties The General Counsel contends that Respondent gave insufficient notice to the Union of any impending changes regarding vacation policy and such insufficient notice amounted to no notice at all There was no mean ingful opportunity for bargaining with the Union and Respondent indicated no flexibility on the issue of vaca tion cancellation In further arguing the 8(a)(5) violation here the General Counsel relies heavily on the decision of the Board in Stokely Van Camp 259 NLRB 961 (1982) In Stokely Van Camp the Board found violations of Section 8(a)(1) (3) and (5) of the Act in the employ er s unilateral determination contained in an announce ment before the beginning of a strike that would cancel all scheduled employee vacations and withhold payment of vacation benefits In reaching its conclusion the Board relied on the facts that showed (1) respondent canceled vacations and withheld vacation pay from employees before the commencement of the strike and before it 6 NLRB v Westinghouse Electric Corp 603 F 2d 610 (7th Or 1979) enfg 237 NLRB 1209 (1978) ' Thorwin Mfg Co 243 NLRB 620 (1979) 83 C Exh 5 9 R Exh 1 There was no provision for payment of vacation pay in lieu of time off and there was no showing of a practice in this regard although at the conclusion of some prior strikes Respondent and the Union had negotiated some instances of payment in lieu of vacations TEXACO INC 527 could be determined that a strike actually was going to take place (2) vacation benefits had consistently been provided by the employer on a regular basis in the past to employees on leave of absence and sick leave immedi ately before the start of their scheduled vacation (3) there was independent evidence of union animus indicat ing that the cancellation of vacations was designed to pe nahze the strikers and (4) the employer was not empow ered by either the collective bargaining agreement or past practice to refuse to pay earned vacation benefits Regarding the 8(a)(5) violation the Board concluded that Respondent had not notified the Union about the cancellation of vacations and withholding of vacation pay Accordingly by unilaterally canceling employee va cations and withholding and deferring payment of vaca tion benefits the employer breached its bargaining obli gation with the Union in violation of the Act The General Counsel argues that Respondents reh ance on its past practice of canceling and discontinuing and rescheduling vacations during prior strikes is mis placed because the Union here had shown that it would not countenance any further actions in this regard More over in response to any argument of a waiver of the Union of its right to bargain concerning cancellation of vacations the General Counsel asserts that the Union forcefully pressed the legal issue of an unlawful with holding and denial of vacations since the announcement by Respondent on January 7 Respondent in its brief asserts that it made no changes in the vacation plan itself and describes its conduct con cerning the vacation plan as merely an announcement of procedures relative to administrative and nonsubstan tive aspects of the plan Respondent argues that under its interpretation of the labor agreement which incorporat ed the vacation plan and its interpretation of the plan itself Respondent was entitled to take the action it did regarding vacations Respondent points out that its action in the instant case with respect to announcing the canceling of vacations was entirely consistent with its conduct in similar situa tions over the past 30 years and which conduct had been specifically found by the Board to be lawful in Texaco Inc 179 NLRB 989 (1969) which involved Respondent at the same location involved here In Texaco Inc supra the General Counsel had urged under similar cir cumstances that Respondent had violated Section 8(a)(1) and (3) of the Act by conduct identical to that in the in stant case There Respondent advised the Union that no vacations other than those that had already begun would be granted during a strike and that vacations scheduled to commence during a strike period would be resched uled following termination of the strike An individual employee Bennett whose vacation had previously been scheduled to begin after the strike was even required to pay back the advance vacation pay he had received The administrative law judge in his decision adopted by the Board described the essential issue in the case as dealing with the scheduling of vacations and not merely with the payment of accrued vacation pay Id at 993 On this basis the administrative law judge distinguished the case from NLRB v Great Dane Trailers 388 US 26 (1967) Flambeau Plastics Corp v NLRB 401 F 2d 128 (7th Cir 1968) The administrative law judge noted that as here vacation pay had always been tied to the taking of time off from work for vacation and had not been considered extra money due to the employees More over he noted that the agreement and practice between Respondent and the Union there allowed Respondent to use its discretion to schedule vacations so as to suit the convenience of the employee and interfere least with re spondent s operation He thus found no discrimination in violation of Section 8(a)(3) and (1) of the Act in Re spondents canceling of the prescheduled vacations and the requiring that advanced vacation pay be returned In light of the Board s decision in Texaco Inc supra finding its prior conduct lawful Respondent argues that the Union s acquiescence in this procedure over many years amounts to a waiver of any rights the Union might have had to bargain with Respondent over cancellation and rescheduling of vacations C Discussion and Conclusions It is a well established principle of law that an employ er with an outstanding bargaining obligation cannot um laterally alter or change an existing benefit which consti tutes a mandatory subject of bargaining without prior notice to or bargaining with the Union See Sherwin Williams Co 260 NLRB 1231 (1982) Curley Printing Co 169 NLRB 251 (1968) Moreover mandatory sub jects of bargaining previously provided for under a col lective bargaining agreement may not be unilaterally changed without giving notice to and negotiating with the Union even where the bargaining agreement has ex pired See Hinson v NLRB 428 F 2d 133 (8th Cir 1970) Vacations and vacation pay is clearly a mandatory sub ject of bargaining See Robbins Door & Sash Co 260 NLRB 659 (1982) Stokely Van Camp supra Thus criti cal to the determination of a refusal to bargain violation of the Act here is a conclusion whether there was a change in Respondents vacation policy I conclude there was no change Respondent under its vacation plan adopted by the collective bargaining agreement allowed Respondent to schedule vacations so as to least interfere with its oper ations Regarding this authority of the Company the ad ministrative law judge noted in Texaco Inc supra at 993 In this context there is a distinct difference between vacation time and strike time In vacation time the absence from work is timed to interfere to a mini mum degree with a company s operation For a strike to be effective the strikers absence from work must create maximum interference with a company s operation 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 operation Respondent could not con trol absences due to strike but under its contract and under past practice it could control absences due to vacation Vacations were not merely can celed but were rescheduled 528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Accordingly the administrative law judge and the Board found that Respondent had a contractual right to sched ule vacations Moreover aside from the collective bargaining agree ment Texaco Inc supra establishes Respondents past practice of many years in exercising its right to resched ule vacations on commencement of a strike The Union had never questioned that right Based on the uncontra dicted and credible testimony of Union President Hebert Respondents policy regarding rescheduling vacations at the commencement of a strike had been in existence for the 15 year period he had been employed by Respondent up to the time of the strike Respondents action here was clearly consistent with past practice and the conclu sions reached in Texaco Inc Even the Union s action reveals to a degree its ac knowledgement of Respondents right to cancel and re schedule vacations in view of the strike Thus the Union did not specifically request that Respondent bargain about its actions Rather the Union vaguely referred to recent decisions which raised questions about the le gality of the cancellation and rescheduling of vacations However it was not until more than 2 months later that the Union ever specified those cases to Respondent Moreover examination of these cases show them to be inapposite to the refusal to bargain contention here Thus in Westinghouse Electric Corp supra an 8(a)(1) and (3) violation was found premised on the employers dif ference in treatment regarding vacation benefits accord ed strikers on one hand and nonstrikers and returning strikers on the other There was no such difference shown in the instant case Similarly in Thorwin Mfg Co supra an 8(a)(1) violation was found in the employee s denial of accrued vacation benefits to strikers as a conse quence of their participation in a strike There was no denial of such benefits shown in the instant case only a postponement of vacations Accordingly neither of the cited cases establishes the unlawfulness of Respondent s actions here regarding vacations The cited cases serve to show however that the Union s claim of illegality in Respondents implementation of its vacation policy was based on its belief that Respondents action was discnmi natory to strikers rather than on a belief that Respondent departed from the collective bargaining agreement or past practice Stokely Van Camp supra cited by the General Coun sel here is closer on the facts to the instant case and the violation alleged As already noted in that case an 8(a)(5) violation was found in the employers unilateral action in cancellation of vacations in the face of a strike threat Also an 8(a)(3) and (1) violation was found be cause the evidence revealed and the Board concluded that Respondents action was neither allowed by the col lective bargaining agreement or past practice and addi tionally there was independent evidence that the em ployer s actions were taken in retaliation against the Union and in an attempt to discourage its employees from engaging in the strike Stokely Van Camp however is distinguishable from the instant case I conclude be cause here Respondent as the Board found in Texaco Inc supra was unlike the employer in Stokey Van Camp empowered by both the collective bargaining agreement and a past practice covering many years to take the action it took Considering the foregoing and particularly the Board s decision in Texaco Inc supra which has not been overruled and by which I am bound I find Re spondent did not unilaterally change its vacation plan policy or benefits and therefore did not violate Section 8(a)(5) and (1) of the Act as alleged in the complaint CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com merce within the meaning of Section 2(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 The Respondent did not violate Section 8(a)(1) and (5) of the Act as alleged in the complaint in canceling prescheduled vacations for employees at the commence ment of the strike on January 8 1982 On these findings of fact and conclusions of law and on the entire record I issue the following recommend edio ORDER The complaint is dismissed in its entirety 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