On Application for Enforcement of an Order of the National Labor Relations Board
Before Swygert, Pell and Bauer, Circuit Judges.
This case is before the court upon the application of the National Labor Relations Board (Board) for enforcement of its Decision and Order issued against Westinghouse Electric Corp. (company), on June 14, 1978, and reported at 237 NLRB No. 191 (1978).
The company is engaged in the manufacture, distribution, and sale of electrical apparatus and related products at its plant in Bloomington, Indiana. Since 1958, the company has recognized and contractually bargained with Local Union No. 2031, International Brotherhood of Electrical Workers (union) as representative of its production and maintenance employees at the Bloomington facility. At all material times, the union represented approximately 400 bargaining unit employees.
Under the parties' collective bargaining agreement, the company could schedule a plant shutdown during the calendar year. All employees entitled to vacation with pay were required to take one week concurrently with the shutdown. The agreement, likewise, obligated the company to negotiate the period of the shutdown with the union and designate the dates before January 1 of the year in which the vacation shutdown would occur. The parties agreed in 1976 that the vacation shutdown period for 1977 would last from June 27 (Monday) through July 1 (Friday).
Generally speaking under the contract an employee would be eligible for vacation with pay if he had accumulated at least one year's length of service. Pursuant to the agreement, the substantive right to vacation with pay vested only if the employee was on the "active roll" and had completed thirty days of continuous service at the end of the preceding calendar year. Qualified employees also were required to satisfy two other contractual eligibility requirements in order to receive vacation with pay. First, an employee was required to be on the active roll as of the time of his vacation; and second, he must have completed "at least thirty (30) days' continuous employment at the close of business on his last worked day immediately preceding the time of starting his vacation. . . ." The contract defined the term "active roll" as including those ". . . employees currently available for work except for (certain excused absences) but does not include . . . those engaged in a work stoppage."
On June 12, 1977, approximately two weeks prior to the scheduled shutdown, all bargaining unit employees participated in a lawful strike over unresolved grievances which strike lasted until July 5.*fn1 During the course of the strike, company and union representatives met several times. The company manager told the union that the employees would not be paid unless the strike was over and they returned to work by June 24th. During the strike the company maintained a telephone answering service over which taped messages were played. In a message introduced on June 20, the company announced that if the strike were not settled by Friday, June 24, employees not at work on that day would be ineligible for their scheduled one week's vacation pay. Some forty employees who had been on strike returned to work by June 24 and these employees were paid on that date for the vacation shutdown which commenced on the following Monday.*fn2 All employees in the unit who remained on strike on June 24, 1977, were not paid their vacation pay on that day but instead at a later time in the year, at a time when the plant was in operation, took a vacation and were paid for the vacation. These employees, of course, lost one week's wages.
We also note one additional factual matter which is not directly addressed either in the briefs or oral argument. The Board's brief states that the some three hundred and sixty employees were "required" to take the additional time off later in the year. The citations, however, for this proposition were to a stipulation that "after the strike ended all employees not paid their vacation prior to the shutdown took vacation time off before the end of the calendar year 1977, and were paid for this vacation time off," and to the ALJ's finding of facts which incorporated the stipulation and again referred to "took." From our examination of the record, however, it appears that if the employees had desired to receive the vacation pay for 1976 payable in 1977 they had no choice except to take time off. Thus in its brief the company states that "(w)hile it is true that the striking employees had a vested right to vacation pay in 1977, that payment was not due them until they took vacation time-off." Further, the company referred to what it characterized as universal recognition "that management has a substantial interest in requiring that employees take vacation time off from work for rest and relaxation." Finally on this matter we note a provision of the union contract reading as follows:
It is the responsibility of the Company to see that all employees take their allotted vacation. Vacations must be taken within the vacation year, and they are not cumulative.
We therefore consider that the characterization "required" is proper.
The Board found, in agreement with the ALJ, that the company violated Sections 8(a)(1) and (3) of the Act by withholding their earned vacation pay from its striking employees on June 24, while granting vacation pay immediately to those employees who had abandoned the strike and returned to work, and by requiring them thereafter to forego a week of work in order to qualify for that pay. The Board's order requires the company to cease and desist from the unfair labor practice as found. In addition although the ALJ had enjoined the company from interfering with employees' Section 7 rights, "in any like or related manner," the Board modified this part of the ALJ's order and prohibited the company from violating Section 7 rights "in any other manner." Affirmatively the Board's order requires the company to make the striking employees whole for any loss of wages they may have suffered as a result of the company's failure to pay them vacation benefits on June 24. The parties apparently agree that the effect of this part of the order is to require payment of wages for the workweek missed when the vacation was later taken to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). The company was also required to post appropriate notices and to make available necessary records for the purpose of computing the amount of back pay due.
The company, in opposition to the Board's application for enforcement contends that the challenged action did not constitute an unfair labor practice and that even if it did the remedy of ordering the payment of the additional week's pay was inappropriate, and finally that in the absence of findings of anti-union animus and/or extensive unfair labor practices the Board's cease and desist order was too broad.
The first two contentions of the company are interrelated, and we will consider those first. The sections of the Act found to have been violated are Section 8(a)(1), which makes it an unfair labor practice for an employer to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act," including the right to engage in a lawful strike, and Section 8(a)(3), which makes it an unfair labor practice for an employer "by discrimination in regard to . . . any term or condition of employment . . . to discourage union membership in any labor organization." The Board relies upon NLRB v. Great Dane Trailers, 388 U.S. 26, 87 S. Ct. 1792, 18 L. Ed. 2d 1027 (1967), and its progeny in this circuit, Flambeau Plastics Corp. v. NLRB, 401 F.2d 128 (7th Cir. 1968), Cert. denied, 393 U.S. 1019, 89 S. Ct. 625, 21 L. Ed. 2d 563; NLRB v. Duncan Foundry & Machine Works, Inc., 435 F.2d 612 (7th Cir. 1970); and NLRB v. Knuth Bros., 584 F.2d 813 (7th Cir. 1978). The company contends that the Board's reliance upon this line of authorities is misplaced because in all of the cases the rights of striking employees to vacation pay was extinguished although vacation pay benefits were given to nonstrikers. Here, according to the company, there was a significant difference in that all employees, strikers and nonstrikers alike, received all of the vacation time-off and all vacation pay to which they were entitled in 1977 during the calendar year. "It is patently obvious, therefore," continues the company, "that the company did not discriminate in regard to terms or conditions of employment as striking employees merely had their vacations with pay deferred until they were once again on the "Active Roll.' " The company in turn relies upon cases which it argues are applicable: Texaco, Inc., 179 NLRB 989 (1969), Detroit Edison Co., 206 NLRB 898 (1973), and G. C. Murphy Co., 207 NLRB 579 (1973). The Board did not file a reply brief but in oral argument distinguished these cases on the basis that the company's practice toward all employees was consistent and equal, pointing out that in those cases vacations had been scheduled at a time when a strike had intervened and that the companies had been held to have properly deferred the vacation taking to a later time.
From our examination of the cases, we conclude that each of the parties is correct insofar as each contends that the cases are not directly applicable here, although there is language in Duncan Foundry which ...