Roegelein Provision Co.

National Labor Relations Board - Board Decisions

Mar 6, 1970

181 N.L.R.B. 578 (N.L.R.B. 1970)

578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roegelein Provision Company and Antonio Deleon,
and Domingo C. Servantez , and Rosalio C. Garcia,
and Vicente P. Morales , and Richard Noriega, and
Johnny Martinez . Cases 23-CA-3240-5,
23-CA-3240-8, 23-CA-3240-9, 23-CA-3240-14,
23-CA-3240-15, and 23-CA-3240-16
March 6, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On June 30, 1969, Trial Examiner Melvin Pollack
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has
reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the entire record in
this case, and, for the reasons set forth herein,
dismisses the complaint in its entirety.
The Trial Examiner found that the Respondent
violated Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended, by refusing to
count strike time towards vacation eligibility under
a newly negotiated collective-bargaining agreement,
thereby denying reinstated strikers the vacation
benefits they would have earned if they had worked
during the strike. In the particular circumstances of
this case we disagree.
The facts are not in dispute. The Respondent
operates a meatpacking business in San Antonio,
Texas. From April 1, 1965, to April 1, 1968, the
Respondent recognized Local 171, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO, as the exclusive representative
of its employees. In April 1968,' the Board certified
the National Brotherhood of Packinghouse and
Dairy Workers, herein called the Union, as the new
collective-bargaining representative of the
Respondent's employees. On April 25, the
Respondent and the Union commenced negotiations
for a new contract. On September 24 or 25, the unit
employees struck in support of their economic
demands. The strike ended November 9, the date
the parties executed a contract.
The newly negotiated agreement contained the
following vacation article, application of which by
the Respondent is here in issue:
All dates refer to 1968 unless otherwise indicated
ARTICLE XI
Vacations
Section 1. All employees who have completed
one (1) year of continuous service for the
Company shall receive one (1) week's vacation
without interruption with pay, such pay to be
forty (40) times the employee's regular straight
time hourly rate. Employees who have completed
four (4) years continuous service for the company
shall receive two (2) weeks' vacation with pay,
such pay to be eighty (80) times the employee's
regular straight time hourly rate. It is understood
that `service' as used herein means time actually
spent performing productive work for the
Company and does not include time away from
work for any cause or reason whatever. Such
vacation shall be taken at a time designated by
the Company. The temporary layoff by the
Company for not more than sixty (60) days of
any employee who has as much as ten (10)
months continuous service with the Company
shall not constitute a break in such employee's
continuous service as that term is used in this
section. After an employee has become eligible for
a vacation, he shall be entitled to have it within
six (6) months after such eligibility has been
established.
Section 3. An employee who has been absent
from work for any reason for as many as two
hundred (200) hours during which the employee
was supposed to work, during the twelve (12)
months immediately preceding the taking of his
vacation, shall not be entitled to a vacation.
Provided, however, that absence because of
military reserve duty and jury duty shall not be
counted as time absent for the purpose of the
above disqualification.
The agreement also contained a no-strike clause; a
miscellaneous provision (article XVII, section 4)
permitting, with certain qualifications, employee
"leaves of absence for Union business"; and an
arbitration clause specifically permitting arbitration
of unresolved grievances concerning "[e]mployee
eligibility for vacation pay and the amount of such
vacation pay due in accordance with the terms of
this contract."
Following the strike, and on November 11, the
Respondent began recalling striking employees.
Shortly thereafter, it denied vacation benefits to all
employees, including both the charging parties and
other employees who worked throughout the strike,
whose absences during the preceding 12 months met
or exceeded 200 hours. Basing this decision on
article XI, section 3, of the contract, the
Respondent counted strike time as a disqualifying
absence for this purpose. The record shows that the
181 NLRB No. 72
ROEGELEIN PROVISION CO. 579
six charging parties, had they worked during the
strike, would have qualified for vacations under the
contract.
During the contract negotiations, the subject of
vacations was discussed at eight bargaining
conferences. In these negotiating sessions, the scope
and meaning of Section 3 was discussed throughout.
The Company originally proposed a vacation
provision substantially identical to that finally
agreed on, except in two respects: its original
proposal disqualified employees after 180 hours
(instead of 200); and, as the Company did not want
any exception to the "for any reason" proviso, its
original proposal would have disqualified employees
from participating in vacation benefits if absences
for any reason exceeded the 180 hour figure. The
Union in response demanded (1) that the amount of
vacation be based on a percentage of earnings,
rather than on' the 1 week after 1 year, etc., type of
formula; (2) that the disqualifying hours-absent total
be raised from 180 hours to 200 hours; and,(3) that
the contract include five enumerated exceptions to
the absent "for any reason" provision, viz:
An employee absent from work for any reason for
as many as 200 hours during which the employee
was supposed to work during the 12 months
immediately preceding the taking of his vacation
shall not be entitled to a vacation, except that
leaves of absence on Union business, sickness,
both family and employee, accidents where
substantiated by acceptable medical evidence,
military reserve duty and jury duty shall not be
counted as time absent for the purpose of the
above disqualification.
The Respondent and the Union finally agreed to
retain the Company's formula for amount of benefit
(1 week for 1 year, etc.); to raise the disqualifying
total to 200 hours; and to include only two of the
five requested exceptions - military reserve duty
and jury duty. In addition, although the Respondent
agreed (at the October 18 session) to permit
absences for "Union business" (under the
miscellaneous provision mentioned above), it made
clear that it would nevertheless count such absences
toward the 200 hours for purposes of disqualifying
employees for vacation benefits. This "Union
business" provision apparently was intended to
denote absences for such matters as filing or
processing grievances.'
At the seventh bargaining session, held September
10, attorney West joined the negotiations for the
'At the last bargaining session in which vacations were discussed, held
during the strike and just prior to the parties' agreement on this subject,
the Respondent 's negotiator (attorney Weiss ) stated that , so far as the
Respondent was concerned , "the leave of absence [for Union business] has
nothing to do with the vacation provision They are in no way related"
Then , when the Union 's negotiator (Mr Morris ) asked hypothetically"
[ l]f a person took off for t hour today to handle someone 's grievance on
[sic] the plant It took him approximately an hour or half an hour or so, is
this time counted against him [toward the 200 hours]" Weiss responded,
"Any reason , it means any reason . I don't see how you can state it any
more clearly than that "
first time, and participated as chief Union
negotiator. On that occasion, he introduced for
discussion proposals based on, but modifying, the
then-expired contract with the Amalgamated Meat
Cutters Union, which had been in effect from April
1, 1965, to April 1, 1968. That contract contained a
vacation clause which, so far as is here relevant, had
required as a precondition for vacation eligibility
that the employee have completed 1 year of
"continuous service," and also said: "It is
understood that `service' as used herein means time
actually spent performing productive work for the
company and does not include time away from work
on strike, in the armed service, or for any other
cause or reason." [Emphasis supplied.] However,
after West sought discussion of this document and
his proposed modifications, Company negotiator
Weiss suggested it be withdrawn, because "the
Union in previous meetings [having already] agreed
to a number of these clauses in the Company's
proposals . . . , we think it is really a step
backwards to try to go back to the old contract
when we have made such substantial progress in
reaching agreement on the provisions of the contract
proposals submitted by the Company." Accordingly,
West's proposal was withdrawn; and no discussion
of its vacation provisions took place
The Trial Examiner found that the Charging
Parties and other strikers were denied vacation
benefits because the Respondent counted strike time
in computing hours of absence for purposes of
article XI, section 3,' and concluded that this
disqualification constitutes unlawful discrimination
under recent Board Decisions involving what he
found to be comparable circumstances. The Trial
Examiner further concluded that the Board is not
deprived of jurisdiction merely because the
Respondent's defense rests on contract
interpretation; that in any event the Respondent's
interpretation was unsound, because there was no
agreement by the Union, "expressed or implied," to
so disqualify the strikers; and that the Board and
court decisions relied on by the Respondent,
including General Electric Co., 80 NLRB 510, are
inapplicable. To remedy the violation, he
recommended that the strikers be made whole for
any loss of vacation pay they incurred due to the
Respondent's discrimination, which amount "may
be reduced pro rata for their absence from the job
while on strike."
The Respondent contends , inter alia , that when
executing the contract, the parties were "fully aware
of the intended scope" of the vacation provisions;
that the Respondent's motivation was not unlawful;
and that relevant Board and court decisions require
dismissal of the complaint because there was no
discrimination in any event, inasmuch as none of the
strikers denied a vacation had already qualified for
'The Trial Examiner's reference to "strike benefits" should obviously
read "vacation benefits "
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it at the time of their application, while nonstrikers
absent over 200 hours were also denied vacations. In
the particular circumstances, we find merit in the
Respondent's position.
We are persuaded by the affirmative evidence
appearing in this record that the denial of vacation
benefits has been satisfactorily demonstrated to be a
lawful implementation of a right understood to have
been acquired through the collective-bargaining
process, from which conduct no inference of
improper motive should be drawn. It is undisputed
that the Respondent, in denying vacation benefits,
relied solely on section 3 of the vacation article,
which disqualified employees from participating in
benefits, if absent for more than 200 hours, for any
reason, during the previous 12 months. That this
provision would adversely affect those striking in
support of the Union's position was inescapably in
issue during the bargaining which led to its
incorporation in the final contract. The negotiating
history shows that the meaning and scope of that
provision were the subject of repeated discussions.
The Union, during the negotiations, was reminded
that under the predecessor contract between
Respondent and the Meat Cutters Union, strike
time was specifically excluded from "continuous
service" for vacation purposes. At the same time,
Respondent in describing the proposed 180-hour
exclusion, which upon the Union's request was later
raised to 200 hours, repeatedly informed the Union
of its applicability to all forms of absences. With
this in mind, the Union also sought exceptions
covering five types of absences. Negotiations
resulted in agreement on two, but the Union receded
from its demand that absences for "union business",
sickness, and accidents not be counted toward the
200-hour exclusion. The resulting contract language
was plain and unambiguous, and since the Union
acceded to it while the strike was in progress, there
could be no confusion as to its intended impact
upon reinstated strikers. Indeed, when one of the
Charging Parties protested his loss of vacation to a
Union steward, he was referred to section 3 of the
vacation provision.
Under all the circumstances, we are persuaded
that Respondent has affirmatively established that
the losses incurred by the strikers stemmed from
good faith collective bargaining between Respondent
and the statutory representative of the alleged
discriminatees. Accordingly, as Respondent's action
could hardly be viewed as conduct discouraging
union activity in any proscribed sense , we disagree
with the Trial Examiner, and shall dismiss the
complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the complaint herein be,
and is hereby, dismissed in its entirety.
MEMBER BROWN, dissenting:
For the reasons stated by the Trial Examiner, I
would adopt his Decision and Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: These cases were
heard at San Antonio, Texas, on April 29, 1969, pursuant
to charges filed on January 16 and 24, 1969, and a
consolidated complaint issued on February 28, 1969. The
complaint alleges that Respondent violated Section 8(a)(1)
and (3) of the Act by denying vacation benefits to
employees who engaged in a strike to further their
bargaining demands. The General Counsel, Respondent,
and the Union filed briefs after the hearing.
Upon the entire record, and my observation of the
witnesses, I make the following.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is engaged in the meat packing business in
San Antonio, Texas, and during the 12 months preceding
the complaint had retail sales in excess of $500,000 and
purchased over $50,000 worth of goods from out of state
firms. I find that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
National Brotherhood of Packinghouse and Dairy
Workers, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Pursuant to a Board election conducted on April 12,
1968, the Union was certified as the collective-bargaining
representative of Respondent's production and
maintenance employees, including plant clericals.
Collective bargaining began on April 25 and, on
September 24, employees in the bargaining unit struck in
support of their bargaining demands. The strike ended on
November 9, 1968, when Respondent and the Union
executed a collective-bargaining agreement.' The
agreement contained the following article on vacations:
ARTICLE XI.
Vacations
Section 1. All employees who have completed one (1)
year of continuous service for the Company shall
receive one (1) week's vacation without interruption
with pay, such pay to be forty (40) times the employee's
regular straight time hourly rate. Employees who have
completed four (4) years continuous service for the
Company shall receive two (2) weeks' vacation with
pay, such pay to be eighty (80) times the employee's
'Respondent and the Union simultaneously executed a strike settlement
agreement which provided, inter aim , that "the rights and obligations of
the parties shall be those, and only those, evidenced by the Collective
Bargaining Agreement executed by the parties of even date herewith "
ROEGELEIN PROVISION CO. 581
regular straight time hourly rate. It is understood that
"service" as used herein means time actually spent
performing productive work for the Company and does
not include time away from work for any cause or
reason whatever . Such vacation shall be taken at a time
designated by the Company. The temporary layoff by
the Company for not more than sixty (60) days of any
employee who has as much as ten ( 10) months
continuous service with the Company shall not
constitute a break in such employee's continuous service
as that term is used in this section After an employee
has become eligible for a vacation , he shall be entitled
to have it within six (6 ) months after such eligibility has
been established.
Section 2. No employee shall work for pay for any
other employer during his vacation , and any employee
who violates this provision shall be subject to discharge
Section 3 . An employee who has been absent from
work for any reason for as many as two hundred (200)
hours during which the employee was supposed to
work , during the twelve ( 12) months immediately
preceding the taking of his vacation , shall not be
entitled to a vacation . Provided, however , that absence
because of military reserve duty and jury duty shall not
be counted as time absent for the purpose of the above
disqualification.
Respondent thereafter counted time on strike as
absence from work within the meaning of article XI,
section 3, and denied vacation benefits to all employees,
including the six charging parties, whose absences from
work , including time on strike , met or exceeded 200
hours. For example , Antonio De Leon requested a
vacation in November 1968, at which time in the
12-month period preceding his request he had missed 334
hours of work , of which 272 hours were missed during the
strike and 62 hours were missed prior to the strike. De
Leon was denied a vacation on the ground of
disqualification under article XI, section 3
The Board holds that an employer may not equate
strike time with other forms of absence because the Act
protects employees who are on strike , and hence , even if
his action is free of antiunion motivation ,2 that an
employer discriminates against strikers by depriving them
of vacation benefits for which they otherwise qualify
because of strike "absence ." Flambeau Plastics
Corporation , 167 NLRB No. 102; Frick Company, 161
NLRB 1080, 1108 ; Star Expansion Industries
Corporation , 164 NLRB No. 95; Tex-Tan Welhausen
Company, 172 NLRB No. 93 . See also Quality Castings
Company, 139 NLRB 928, reversed 325 F 2d 36 (C A 6),
National Seal , Division of Federal- Mogul-Bower
Bearings , Inc , 141 NLRB 661, reversed 336 F.2d 781
(C.A. 9).3 Respondent does not dispute that the charging
parties and other strikers were denied strike benefits
because it counted strike time in computing hours of
absence for purposes of Article XI, Section 3. It contends,
however, that such computation accords with the language
of its contract with the Union, especially when Article XI,
Section 3 is interpreted in light of the bargaining
negotiations on vacations.'
'The General Counsel did not contend in his complaint or at the hearing
that Respondent 's withholding of vacation benefits from the strikers was
motivated by antiunion considerations
'I follow the Board decisions in the Quality Castings and National Seal
cases as the Board has not accepted the adverse court rulings
'The issue presented in this case is not whether Respondent breached its
contract with the Union by denying vacation benefits to the strikers, but
Article XI, Section 3, as originally proposed by
Respondent, provided: "An employee who has been absent
from work for any reason for as many as 180 hours
during which the employee was supposed to work, during
the twelve (12) months immediately preceding the, taking
of his vacation, shall not be entitled to a vacation."
Respondent agreed during the negotiations to increase the
disqualifying absence from work to 200 hours and, of
several exceptions proposed by the Union - leave of
absence on union business, sickness, accidents, military
reserve duty, and jury duty - agreed to the latter two
exceptions The strike was not mentioned in connection
with the negotiations on vacations. In these circumstances,
I see no agreement by the Union, expressed or implied,
that the employees who had responded to its lawful strike
call would be considered "absent" from work for purposes
of determining vacation eligibility.'
Respondent further contends that its denial of vacation
benefits to the strikers is in accord with Board decisions
holding that vacation pay, profit-sharing rights, health
insurance premiums, and similar employee benefits are
forms of wages and that an employer is therefore under
no obligation to treat strike time as work time or pay
employees such benefits while they are on strike See, for
example, General Electric Company, 80 NLRB 510;
Mooney Aircraft, Inc., 148 NLRB 1057; Kimberly-Clark
Corporation, 171 NLRB No. 82. In General Electric, the
employer denied strikers accrual of vacation and pension
benefits during the period of the strike, but gave the
strikers full credit for their work before and after the
strike. In Mooney Aircraft, the employer's plan required 1
year of actual work as a prerequisite for vacation
eligibility. The Board held that nine reinstated strikers
who thereafter quit their jobs were not entitled to vacation
pay because they did not meet this requirement of actual
work. In Kimberly-Clark, the employer gave employees
no service credit for time lost during a strike. The
foregoing cases, and similar cases cited by Respondent,
are thus examples of the familiar principle that an
employer need not finance a strike against himself. They
are not authority for Respondent's position that it was
privileged to treat time on strike as an absence from work
for purposes of determining vacation eligibility under its
contract with the Union.
I find that Respondent, in contravention of the right of
employees to engage in protected strike activity, equated
time on strike as the equivalent of absence from work for
the purpose of determining vacation eligibility under its
contract with the Union and, accordingly, that it violated
Section 8(a)(1) and (3) of the Act by denying vacation
benefits to employees whose absence from work, excluding
time on strike, was less than 200 hours.
whether Respondent by this conduct acted in derogation of the right of its
employees to strike in support of their bargaining demands. The Board is
not precluded from resolving this unfair labor practice issue because
Respondent asserts that its denial of vacation benefits to the strikers
followed the terms of the contract N L R B v. C & C Plywood Corp,
385 U S 421, Flambeau Plastics Corp, 167 NLRB No 102
'The contract vacation article was agreed upon on October 18, 1968
During this bargaining meeting, Respondent 's attorney , Weiss, emphasized
that the 200-hour provision included absences "for any reason " other than
military reserve duty or jury duty, and the Union 's attorney, West,
remarked "Does everybody understand that? I think this is important
Two hundred hours for any reason " As the Union had up to this meeting
insisted on other exceptions in addition to military reserve duty or jury
duty, I do not agree with Respondent that the negotiations at the October
18 meeting support its position that the Union negotiators understood and
agreed that time on strike would be disqualifying absence.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
meaning of Section 2(5) of the Act.
3. By denying vacation pay to employees because they
engaged in protected concerted and union activity,
Respondent engaged in unfair labor practices proscribed
by Section 8(a)(1) and (3) of the Act.
4. The aforesaid labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
As Respondent has unlawfully denied vacation benefits
to employees who engaged in the September 24 strike, I
shall recommend that Respondent make these employees
whole by paying them the vacation pay to which they are
entitled. Their vacation pay, however, may be reduced pro
rata for their absence from the job while on- strike., The
amounts due shall be determined in the compliance stage
of this proceeding and shall include interest at 6 percent
from the dates on which they normally would have been
paid.
[Recommended Order omitted from publication.]
'As vacation payments are a form of wages, Respondent cannot be
required to make such payments to individuals for the period they were
absent on strike General Electric Co , supra. 80 NLRB 510 at 511