Mueller Co.

National Labor Relations Board - Board Decisions

Jun 16, 1967

165 N.L.R.B. 508 (N.L.R.B. 1967)

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mueller Company and Local Union No. 838,
Allied Industrial Workers of America,
AFL-CIO. Case 38-CA-128.
June 16,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On July 1, 1966, Trial Examiner George Turitz
issued his Decision in the above-entitled case,
finding that the Respondent had not engaged in
certain unfair labor practices as alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision together with a supporting brief. The
Respondent filed cross-exceptions with a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The 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 the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
complaint was issued on a charge and first amended
charge filed by Local Union No 838 of the International
Union, Allied Industrial Workers of America, AFL-CIO'
("the Union") and served upon Respondent on August 25
and November 22, 1965. respectively. The complaint
alleged that Respondent's refusal to pay "accrued"
holiday pay to employees then on strike was a violation
of Section 8(a)(3) and (5) of the National Labor Relations
Act, as amended ("the Act"). Respondent filed an
answer to the complaint in which it denied all allegations
of unfair labor practices and pleaded various affirmative
defenses. At the hearing the General Counsel and
Respondent were represented by counsel. Both waived
oral argument but filed briefs with the Trial Examiner. -
Upon the entire record2 and from his observation of the
witnesses the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Mueller Company is an Illinois corporation with its
principal office and place of business located at Decatur,
Illinois, where it is engaged in the manufacture and sale of
gas and water distribution equipment. Respondent in the
course and conduct of its operations annually sells and
ships products valued at in excess of $50,000 directly to
customers located outside the State of Illinois.
Respondent admits, and it is found, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the National Labor Relations Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
i The Trial Examiner found that the General Counsel failed to
satisfy his burden of proof that the strikers had earned the holiday
pay involved in this proceeding We rely upon this failure of proof
alone in affirming the Trial Examiner's Decision in this case
dismissing the complaint But see Great Dane Trailers, Inc , 150
NLRB 438, 388 U S 26, Frick Company, 161 NLRB 1089
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TURITZ, Trial Examiner: On March 29, 1966, a
hearing was held before the Trial Examiner at Decatur,
Illinois, on a complaint against Mueller Company ("the
Respondent" and at times "the Company") issued
December 29, 1965, by the General Counsel of the
National Labor Relations Board ("the Board") through the
officer in charge of the Board's Subregion 38. The
A Sequence of Events-the Expired Contract
In 1944 the Union's predecessor, Local Union No. 838 of
the International Union, United Automobile Workers of
America, AFL, was certified as representative of a
"production and maintenance" unit of Respondent's
employees. Between 1954 and 1956, following the merger
of the AFL and CIO, Local 838 became Local Union No.
838 of the International Union, Allied Industrial Workers
of America, AFL-CIO, the Charging Party in this case.
Respondent has maintained a bargaining relationship with
this labor organization since 1944. In 1962 a contract was
entered into to expire May 25, 1965. Negotiations for a new
contract were unsuccessful and on May 24, 1965, the
union bargainers notified the Respondent that there would
be a strike that night, saying, "No contract, no work." The
strike began at 12:01 a.m., May 25. No employee in the
bargaining unit reported for work during the strike, which
was finally settled on July 7, 1965.
A copy of the 1962 contract in evidence" is a printed
booklet of 100 pages. 37 of which are devoted to seniority
and to layoff, recall, and job-bidding procedures. The
contract provided that seniority status was retained on
i This is the Union's name as it appears on its contracts with
Respondent The case caption shows its name as subscribed to
the charge and the first amended charge.
i The errors in the transcript have been noted and corrected
G, C Exh 3
165 No. 66
MUELLER CO.
layoff up to the maximum period of 3 years, or 5 years in
the case of employees aged 55 to 60.4 Employees absent
from work more than 7 days for any reason other than
approved vacation, injury, or illness were required to apply
for a leave of absence;' and those absent for 3 consecutive
workdays without notifying the personnel office lost all
seniority. The contract provided for certain paid holidays,
among them Memorial Day (May 30), Independence Day
(July 4), and the employees' respective birthdays, the
holiday to be observed on Monday when falling, as was the
case with Memorial Day in 1965, on a Sunday or a
Saturday, and an extra day off to be given an employee
whose birthday fell on a holiday. The holiday provision
included the following:
17.1 All employees on the active payroll the day of
the holiday who have established seniority with the
Company and who have worked at least one eight (8)
hour shift in a period two (2) weeks before a holiday
shall receive holiday pay. Employees who are on
vacation will receive holiday pay even though they did
not work an eight (8) hour shift in the period two (2)
weeks before the holiday. Employees laid off or
retiring in the two (2) week period before the holiday
who have worked an eight (8) hour shift will be paid
holiday pay. Employees injured in the plant and who
are off work will be paid holiday pay even though they
did not work an eight (8) shift in the two (2) week
period before the holiday.
17.2 ... No employees ... shall be required to work
on a holiday....
The contract had vacation provisions which included
the following:
19 1 All employees in the bargaining unit on the
active payroll on the anniversary date who meet the
eligibility requirements set forth in this policy will be
granted time off from work and be paid for such time
in manner explained below: such time off with pay
will be known as vacation
Eligibility will be determined by the anniversary date
of the employee's last hiring date and active service
credit earned in the preceding year.
The contract provided that employees separated from the
Company were to receive all vacation earned in the
previous year which had not been taken, together with
vacation pay for each month's "active service" from
January 1 to the time of separation in accordance with a
schedule setting forth a specific number of hours for each
month of active service between January 1 and the date of
separation. Active service was defined in the contract as
follows:
19.4. . Any work performed in any given month
shall be deemed as active service. Employees absent
This was subject to the requirement that employees notify the
Company by registered or certified mail within 60 days prior to
the expiration of each 1-year period of their wish to be retained on
the Company 's recall list
5 Sefton , Respondent 's factory manager, testified that
Respondent also required employees absent for illness to obtain
leave
It will be recalled that no unit employee crossed the picket
line
Nonunit employees were given the same vacation and holiday
509
from work due to illness or personal injury shall be
deemed as having active service up to a maximum of
three (3) consecutive months. Absence of more than
three (3) consecutive months shall not be credited for
vacation pay purposes. Employees injured in the plant
will receive active service credit for time lost due to
this injury.
The contract also provided that employees with 1, 3, and
10 years of seniority would receive paid vacations of 1
week, 2 weeks, and 3 weeks, respectively, plus additional
pay (not days off) for 20 hours for employees with 15 years'
seniority and 40 hours for employees with 25 years'
seniority. Subject to company approval, vacations could be
taken at any time and in any amount up to the maximum
earned.
May 31, 1965, the Memorial Day holiday from work, fell
in the pay period ending June 13, the payday for which was
June 18. No bargaining unit employees received pay for
May 31.6 Respondent also canceled all vacations and
withheld extra vacation pay from all bargaining unit
employees who, apart from questions arising from the fact
that they were out on strike, qualified for such payment
during that period. The checks for the extra vacation pay
were made out on June 13 but were not distributed. All
nonunit employees who met the eligibility requirements
stated in the contract' did receive such holiday and extra
vacation pay. As to the holiday pay. Sefton testified that it
was withheld from the strikers because they failed to meet
the requirement that they be on the active payroll on the
day of the holiday as required by the holiday plan. He said
that Respondent was following the contract terms as to
holidays even with respect to strikers As to the vacation
pay, however, he testified that the reason strikers'
vacation moneys were withheld was: "Our interpretation
of the contract and we canceled vacation and paid nobody
while on strike. . . . The contract was expired and they
were not there to work. so we did not pass them out
They were ... not on the active payroll as we interpreted
the contract." He said that the checks were made ready
since the Company felt that eventually there would be a
contract and the employees would be back on active
payroll."
Negotiations continued during the strike with the aid of
a Federal mediator named Harper. At a meeting between
the parties on June 18, the day certain senior employees
entitled to extra vacation pay under the terms of the
contract would normally have received it, the bargaining
committee requested such pay from the Company.
Respondent refused, saying that the employees would not
get that money until they returned to work. At a
negotiation meeting on June 28 or 30, Harper commented
on the fact that after over 20 years of collective bargaining
the parties were engaged in a 6-week strike, and he
remarked to the union representatives that the
employees had already lost one holiday and were about
to lose another, referring to July 4. The union
representatives did not take issue with the remark. The
benefits as the contract provided There is no evidence that any
nonunit employees were laid off or on leave during the strike
except to the extent that during the latter part the plant was shut
down for the vacation schedule
" In view of this testimony and of the evidence mentioned below
that at the July 20 grievance meeting Respondent argued against
paying the Memorial Day holiday pay on the ground that it had
been agreed that except for the birthday-holiday pay there would
be no retroactivity, Sefton's testimony that Respondent was
following the holiday provisions of the contract is not credited
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union ultimately proposed that in addition to the pay
increases, the additional holiday each year, and whatever
else the Respondent had offered up to that time,
Respondent pay birthday-holiday pay to those strikers
whose birthdays had occurred during the strike. They
argued that it was unfair to those employees to deny them
the birthday-holiday pay which everyone else in the unit
received. Sefton replied that the proposal had some merit
and would be considered. The negotiators met again on
July 7. Sefton asked whether, if the Respondent granted
the birthday-holiday item. the union bargaining committee
would unanimously recommend the package. Assured that
they would, Respondent agreed and the strike was settled
Maintenance employees reported for work the next day;
the others on July 13.
Sefton. corroboratt-d by Ashmore, manager of
Respondent's industrial relations department, testified
that at a negotiation session on or about June 16 or 18 an
employee-member of the bargaining committee asked if
Respondent would pay Memorial Day holiday pay to the
employees on strike and that Sefton refused, saying that
the strikers did not qualify since they were not on the
active payroll. Angle denied that any such demand was
made or that the matter was discussed. In the affirmative
defenses in its answer Respondent alleged certain
negotiations at the June 28 session as constituting
discharge of any obligation to bargain about, and waiver by
the Union of Memorial Day holiday pay. but it alleged
nothing about any incident of such nature earlier in the
strike Moreover. Sefton's testimony is sharply
contradicted by his affidavit taken during the
investigation" in the presence of Respondent's attorney, in
which he said-
At no time during negotiations except as discussed
below, did the question of holiday pay as such arise.
During negotiations prior to the strike, the Union
demanded two additional holidays. However, this
demand was reduced to one additional holiday pay.
the day before Christmas. Agreement was reached on
one additional holiday prior to the strike.
The affidavit describes discussions concerning birthday-
holiday pay and contains the statement, "In discussing
holidays, Angle remarked that he was aware that the
Memorial Day holiday has been lost." The affidavit
contains no statement about any demand by the union
representatives for Memorial Day pay"' until August 11.
1965. after the strike. The affidavit further states, "Prior to
the August 11 meeting, the Company had no knowledge
that any of the employees in the Union felt that they were
entitled to pay for Memorial Day and that this was the first
knowledge the Company had of such demand." The
witness explained the latter discrepancy by saying that
when giving the affidavit he was not thinking of the
Union's representatives but only of the employees, and
then only in their individual capacity and not as members
(, C Exit 6
The affidavit refers to "Company Exhibit 1 attached hereto"
which, however , was not attached to the affidavit as offered in
evidence This was not called to the Examiner 's attention during
the hearing , and no objection %as made that the document was
incomplete Respondent did object to its admission on other
grounds, unrelated to incompleteness
' i The corresponding provision in the 1954 contract includes
the following
65 All employees who have established seniority with the
Company and who have worked at least one eight (8) hour
shift in a period two (2) weeks before a holiday shall receive
of the bargaining committee On the basis of Angle's
testimony, which is credited, and of the corroboration
contained in Respondent's answer and in Sefton's
affidavit, it is found that at no time during the strike did
the Union demand or negotiate about pay for the 1965
Memorial Day holiday.
Sefton and other witnesses for Respondent also testified
that at the final meeting on July 7, Angle said, not by
implication but in so many words, that the bargaining
committee would tell the employees that they were able to
get the birthday-holiday pay for strikers but not Memorial
Day pay. Angle's denial of this testimony is credited
After the unit employees returned to work all who were
entitled to birthday-holiday pay or vacation pay were paid.
Vacation pay was given on the basis of the rates in effect
under the old contract. On July 20 at a regular Tuesday
grievance meeting the union bargaining committee took
the position that vacation pay should be computed on the
basis of the rates in effect at the time of the payment.
Respondent replied that it had been agreed that there
would be no retroactivity The committee then demanded
pay for Memorial Day. Respondent replied that it had been
agreed that nothing would be retroactive except the
birthday-holiday pay and that even that was at the old
rates The matter was brought to the attention of the
president of the Union, who called Angle. Angle pointed
out that the contract contained the eligibility requirements
for holiday pay and said that the Company could be held to
those requirements. After consulting counsel Angle called
Sefton on August 11 and requested a meeting about the
Memorial Day holiday pay. Sefton arranged a meeting for
that same afternoon. At the meeting Sefton's reply was, in
effect, that the strikers did not qualify for the Memorial
Day holiday since they were not on the "active payroll" at
the time of the holiday However he agreed to check with
his superiors. A week later he informed Angle that the
Respondent refused to pay the strikers and the Union
thereupon filed the present charge
B. The Evidence as to the Meaning of "The Active
Payroll"
The words "active payroll" were introduced into the
holiday pay provisions of the contract in 1956." As noted
above, the words were in the vacation provisions even
prior to the 1954 contract.
None of the negotiators at the 1956 negotiations who
testified had any recollection as to the discussion
concerning the introduction into the holiday clause of the
words "on the active payroll " Respondent, however,
produced handwritten minutes of the negotiations made
by Binkley, at that time assistant director of personnel.
who testified that the minutes were written during the
meetings and were an accurate "verbatim" report of
everything said except things he considered unimportant,
such as "a side remark 6r a hest."t '
eight (8 ) hours pay at their straight time hourly rate including
bonus, and shift premium , for the following holidays not
worked Employees who are on vacation or have been
injured in the plant in the month preceding the holiday, and
who are off work shall receive the holiday pay even though
they did not work an eight (8) hour shift in the period two (2)
weeks before the holiday
12 A mere reading of the minutes makes it plain that they were
not verbatim or even complete accounts of the bargaining
sessions However, there is nu reason for them not to be accepted
as sufficiently accurate for present purposes
MUELLER CO.
The minutes show the following: At the April 16
bargaining session the Respondent asked that to qualify
for holiday pay employeesl be "on the payroll"; Angle
replied that a man who worked all year and was separated
2 days before a holiday earned the holiday pay and should
receive it but that the Union would agree if the Company
granted two added holidays; Sefton rejected that proposal
and the matter was passed. At the May 11 session, after
the parties agreed on one additional holiday, Angle
proposed. "Pay everyone on active seniority holiday pay,"
but the company representatives insisted that employees
laid off before the holiday not qualify. Angle said that the
only qualification should be to work one 8-hour shift in the
2 weeks before the holiday. 'A company bargainer warned
that if the matter was not cleared up, ". . we'll put some
real restrictions." Angle asked, "If we give you `active
payroll' will you pay ... those who worked the shift and
[are] then laid off before the holiday?" Sefton replied that
he thought they had come to an understanding. The
minutes for the May 17 session show that Sefton agreed to
"give injured holidays up Ito three" and that he said
something about laid-off and retired employees. but the
minutes are incomplete and meaningless on the point.
In the 1962 contract two new provisions were introduced
allowing employees some pay for time spent on jury duty
and allowing up to 3 workdays off for attending and/or
handling arrangements for funerals of certain relatives.
Both provisions excepted time so spent during "non-work
time" such as holidays, vacations, layoffs, strike, leave of
absence, or, in the case of jury duty, on Saturdays or
Sundays.
Several times during his testimony Sefton stated that to
be on the active payroll a man had to work the day before
and the day after the holiday. However, when questioned
as to actual practice, he stated repeatedly, unequivocally,
and with certainty that employees on the seniority list who
worked the required 8-hour shift did qualify even though
they were absent from work imediately before and/or after
the holiday. Thus he said that a man who worked the 8-
hour shift could be absent for 9 working days before the
holiday and still qualify for holiday pay. He further stated
that the reason for the absence-whether nonoccupational
illness, personal business, or anything else-was
immaterial, so long as the employee did not go on
"approved leave." He said that an employee could be out
sick up to 5 working days or ,7 calendar days without going
on leave. As to obtaining leave of absence for personal
reasons other than illness, he stated that it was difficult to
draw fine distinctions since the practice was so infrequent.
Sefton also testified that when going through company
records in preparation for the hearing it had been
discovered that some employees who had quit had
received holiday pay for holidays occurring after their
termination, but that that l was an oversight. He also
admitted that when discharging Dale Bowen for cause on
December 16, 1964, Respondent had paid Bowen holiday
pay for December 24, 25, and January 1. He stated that
this was not because the contract required it but that the
Christmas season made him feel like doing it.
On February 20, 1966, Respondent paid Memorial Day
holiday pay to two employees in the bargaining unit,
Bolsen and Danewicz. Ashmore testified that in the course
of a general discussion with Jesse, assistant to the
personnel director, of eligibility for vacation credit, they
looked through the contract and became aware of the fact
that those two employees had been entitled to holiday pay
for Memorial Day because they were out of the plant at
511
that time with occupational injuries. When Sefton was
informed, he agreed and the payment was thereupon
made. Bolsen was released for active work on June 28; he
was paid for the May 31 holiday but not for July 4.
Danewicz came back from sick leave after the strike was
over; he was paid for both the May 31 and the July 4
holiday.
Concluding Findings
Counsel for the General Counsel contends that the
denial of the Memorial Day holiday pay to the strikers
constituted a departure from the established conditions of
employment, and that. since it was accomplished without
bargaining with the employees' statutory representative, it
was violative of Section 8(a)(5) of the Act. He also contends
that such departure was discriminatory and violative of
Section 8(a)(3) of the Act, both because denial of holiday
pay on the basis of absence while striking had the natural
and necessary consequence of discouraging strike activity
and union membership, and because Respondent had a
demonstrably discriminatory motive.
The first question to be determined is whether the
holiday pay "accrued" under the terms of employment
established prior to the strike, namely those set forth in
the expired 1962 contract. Since the words, "active
payroll," do not have a plain meaning, it is necessary to
look at other parts of the contract, the negotiations leading
to the contract, and the contracting parties' practice under
the contract to determine the parties' intent in establishing
those terms.
Respondent contends that the 1956 negotiations and the
express provision in the holiday clause for laid-off
employees demonstrate that the parties did not intend to
cover strikers. There is little in the minutes of the 1956
negotiations to support Respondent's contention directly.
The minutes do make plain that Respondent's purpose
was to constrict eligibility for holiday pay, which is
understandable in view of a contract which retained
employees on the seniority list up to 5 years after layoff. It
is equally plain, however, that the Union regarded holiday
pay as wages for which the employees worked not only at
the time round the holiday, but all year. As the holiday pay
provision was not a unilateral act by Respondent but the
product of bilateral bargaining, its ambiguous provisions
must be interpreted in light of both parties' aims. not just
Respondent's. The negotiations disclose nothing as to the
meaning of "active payroll." The express provision for
laid-off employees does not tend to prove that the parties
intended that strikers not receive holiday pay. If active
payroll means anything, it would not include laid-off
employees, but it is not inconceivable that parties would
include strikers within that term, especially in view of the
specific requirement for working an 8-hour shift in the 2
weeks before the holiday.
Sefton's testimony as to the Company's practice adds
up to the proposition that the active payroll on the day
before or after a holiday included all employees working
that day, plus absentees not laid off or separated and not
on formal leave of one kind or another-whether vacation,
personal, or occupational sick leave, or leave for personal
reasons. As employees absent from work more than a
week were required to apply for formal leave of absence,
the insertion of the words"active payroll" accomplished a
change notwithstanding the exception for laid-off and
retired employees. Sefton exaggerated in testifying that to
be on the active payroll one had to work the day before and
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the day after the holiday , and that Respondent was
endeavoring to prevent absences whereby employees
"stretched" weekends . Nevertheless , the 1954 contract
did give employees the benefit of a holiday even though on
approved leave at the time, thus tending to encourage
applications for such leave in holdiay seasons more than at
other times , and this shortcoming was remedied by the
addition of the words "active payroll " interpreted as
described in the first sentence of this paragraph . If that
was parties ' intent , employees absent on strike would be
equally ineligible for holiday pay.
Sefton 's testimony as to the Company 's practice is
unsatisfactory because of his self-contradictions described
above. In addition , it must be noted that his testimony that
the Union demanded pay for the Memorial Day holiday in
the middle of June has not been credited . Moreover
Respondent could have brought in the payroll records,
which Sefton admitted were studied in preparation for the
hearing, to establish with certainty its actual practice with
respect to holiday pay. This omission is especially
significant in view of Sefton's testimony that a number of
"quits" had received holiday pay through "oversight" in
the personnel department , and Ashmore's testimony that
it was only when reading over the contract in the course of
a "general discussion " about vacations that he and Jesse
became aware of the fact that Bolsen and Danewicz had
been eligible for the Memorial Day holiday pay since they
were out on occupational sick leave . It could be inferred
that Respondent 's personnel officials had different ideas
front Sefton 's, and that employees on leave and perhaps
other ineligibles must have benefited from the same
oversight.
The testimony just referred to, coupled with
Respondent ' s failure to produce its payroll records,
suggests that prior to May 31 , 1965, Respondent 's actual
practice was to pay holiday pay to everyone with seniority
who worked the 8-hour shift in the 2 weeks before the
holiday. However, such suggestion is insufficient to satisfy
General Counsel 's burden of proof on the issue of whether
or not Respondent ' s denial of holiday pay to the strikers
represented a departure from established practice.
General Counsel did not produce employees to prove such
practice . The payment to Dale Bowen proved nothing
since he was being discharged under unhappy
circumstances and Sefton admittedly paid him more than
was required by the contract . The express exclusion of
striking employees from the funeral - and jury-pay
provisions of the contract , pointed to in counsel 's brief, is
equally without significance . Those clauses covered
employees not even on seniority , so that an express listing
of nonqualifying absentees was essential. Moreover the
Union 's conduct during the negotiations preceding the end
of the strike tends to contradict General Counsel's
contention that strikers were deemed to be "on the active
payroll ." It has been found above that at no time during
the strike did the Union demand payment of the Memorial
Day holiday pay to the strikers . On the contrary Angle and
" Respondent admittedly failed to pay the holiday pay to
Bolsen and Danewicz, who were on occupational sick leave on
May 31 and therefore should have been paid However, no
demand for the pay was ever made on their behalf except as part
of the general demands on July 20 and August 11. It cannot be
inferred that Respondent would have refused them their holiday
pay if their special situation had come to its attention In any
event , the matter has been remedied.
the other bargaining committee members did not protest
when Harper commented that the Memorial Day holiday
had been lost . Also, when proposing payment of birthday-
holiday pay to strikers the Union argued unfairness, not
departure from established conditions of employment. By
contrast , during the strike the Union did demand payment
of the extra vacation pay for senior employees , and it did
so as soon as it became due under the terms of the expired
contract . Angle's testimony that the reason no demand
was made for the holiday pay during the strike
negotiations was that the bargaining committee thought
the employees "had it earned " is inconsistent with this
established fact . The necessary inference is that the
Union , which had negotiated and administered the
contract , did not consider strikers on the active payroll
and was acting accordingly.
As the General Counsel failed to prove by a
preponderance of the evidence that the established terms
of employment required payment of Memorial Day holiday
pay to the strikers , the allegations of the complaint that the
holiday pay denied the strikers was "accrued " have not
been sustained , 13 and the allegation of violation of Section
8(a)(5) falls.
Counsel for the General Counsel contends that
Respondent's denial of the holiday pay was motivated by
antiunion considerations . This contention is based on the
fact that during the strike Respondent withheld the extra
vacation pay which became due and said the employees
would not get it until they returned to work .'" Counsel's
position is that this establishes Respondent 's animus and
retaliatory frame of mind with respect to the strikers and
that it therefore supports the conclusion that the denial of
Memorial Day holiday pay was similarly retaliatory.
Sefton 's testimony that vacations were canceled and
vacation pay withheld because the contract had expired
lends further support to this contention since the vacation
moneys in question had been earned prior to the strike.
Under the expired contract employees who quit and even
those involuntarily terminated were entitled to be paid for
all vacation earned up to the date of separation.
Respondent ' s action in thus unilaterally changing that
condition of employment after the expiration of the
contract represented a lapse by Respondent in its
statutory duty to bargain collectively with the Union.15
Moreover , since the only employees selected for the
change in conditions of employment were union-
represented strikers , its action necessarily had the effect
of discouraging strike activity and union membership.16
However , unlike the case of the vacation pay, Respondent
never announced an illegal reason for withholding the
holiday pay. The paramount fact is that the strikers were
not on the active payroll and that the holiday pay never
accrued. It cannot be inferred that but for Respondent's
retaliatory motivation it would have been paid. On the
contrary , Sefton 's uncontradicted testimony that
employees on leave were not on the active payroll, the
Union 's acquiesence in Harper 's comment that the holiday
" This was not alleged as an unfair labor practice in the
complaint, apparently because after the strike Respondent
voluntarily paid all the moneys due
I` Herman Sausage Co, Inc, 122 NLRB 168, 171 , enfd 275
F 2d 229, 234 (C . A 5), Phelps Dodge Copper Products Corp ,101
NLRB 360.369 , 387-389
11 Great Dane Trailers, Inc , 150 NLRB 438
MUELLER CO.
had been lost, and its failure to demand the holiday pay
during the strike as it did the vacation pay, all tend to
establish that the Respondent's animus towards the
strikers was not the reason it refused to pay the holiday
pay. 17
In view of the foregoing it is unnecessary to dispose of
the various legal defenses urged by Respondent in its
answer and its brief. It should be noted, however, in
connection with those defenses, that the Trial Examiner
finds that the parties did not bargain out, and the Union
did not waive, the Memorial Day holiday pay; and that
neither the 1962 contract nor the present contract contains
provisions for arbitration or any other adjustment of
disputes other than the within-company grievance
procedures and strike and lockout.
Upon the basis of the foregoing findings of fact and of
the entire record in this case, the Trial Examiner makes
the following:
'r In the absence of proof that the denial of holiday pay was a
departure from the terms of employment established by
Respondent's contract with the strikers' representative, such
CONCLUSIONS OF LAW
513
1. Respondent, Mueller Company, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. By withholding from and refusing to pay employees
holiday pay for Memorial Day 1965, Respondent has not
engaged in unfair labor practices within the meaning of
Section 8(a)(1), (3), or (5) of the National Labor Relations
Act, as amended.
RECOMMENDED ORDER
In view of the foregoing findings of fact and conclusions
of law it is recommended that the Board enter an order
dismissing the complaint in its entirety.
denial must be deemed to be part of the normal loss of wages
incident to a strike and, therefore, notper se discouraging of union
membership or activity