Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Pell, Bauer and Flaum, Circuit Judges.
Petitioner Stokely-Van Camp, Inc. (Stokely, or the Company) seeks review of an order of the National Labor Relations Board (Board), 259 N.L.R.B. No. 128 (1982), which found that Stokely had violated sections 8(a)(1), (3) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 151-169, by postponing vacations scheduled to begin during a strike. The Board cross-petitions for enforcement of its order. For the reasons set forth below, the Company's petition for review is granted, and the Board's petition for enforcement is denied.
Stokely operates a food processing plant and a can manufacturing plant in Indianapolis. The United Steelworkers of America, Local No. 1473 (the Union) is, and has been since 1971, the exclusive bargaining representative of the hourly-paid production, maintenance, and warehouse employees at the two plants.
The 1977-80 collective bargaining agreement expired on Friday, June 6, 1980. At a negotiating session on June 4th, the Union announced that an economic strike would begin at both plants at midnight on June 6th. Sometime on June 4th, James Spurgeon, Stokely's labor relations manager and chief negotiator, decided that all vacations scheduled to begin on or after June 9th would be rescheduled to be taken after the strike ended.*fn1 The Union was not notified of this decision, and individual workers learned of it only when they attempted to pick up advance vacation checks on June 6th. The strike was a violent one, and continued until August 25, 1980. No union members crossed the picket line, but supervisory personnel maintained some production during the strike. After the strike, all employees who had vacations scheduled to be taken during the strike period had an opportunity to reschedule their vacations.*fn2 They were paid for those vacations at the higher rate in effect under the new contract. Seventeen processing plant employees and sixty-five can plant employees were affected by the rescheduling policy, having received approval prior to June 4th for vacations due to begin between June 9th and August 25th. Amounts of one to four weeks vacation time (depending on the employee's length of service) were involved for each.
On June 12, 1980, Earl Martin, a can plant employee who had been scheduled for two weeks vacation beginning June 9th, filed an unfair labor practice charge with the Board alleging that he and other employees had been discriminated against by Stokely's vacation rescheduling policy.*fn3 Martin apparently acted on his own initiative without discussing the charge with the Union. The Union never demanded vacation pay during the strike. The Board's Regional Director issued a complaint on July 18, 1980, charging Stokely with violation of sections 8(a)(1) and (3) of the National Labor Relations Act (the Act).*fn4
As part of the strike settlement negotiated on August 21-22, 1980, the Union insisted on an amnesty clause. The Union agreed to have Mr. Martin withdraw his charge,*fn5 and to withdraw the Union's own charge against Stokely of bargaining in bad faith. In return, Stokely agreed to dismiss a state court injunction against the strike violence, and its charge against the Union of bargaining in bad faith. The Union negotiator also asked for and received Spurgeon's assurance that all affected employees' vacations would be rescheduled. Both Stokely and the Union complied with these conditions.
Mr. Martin, however, was not amenable to withdrawing his charge. After the strike he twice telephoned Spurgeon and said that he would drop his charge as soon as he received all his vacation pay. In December, 1980, Spurgeon called Martin to ask why the charge had still not been withdrawn, and Martin said he had tried but "those people wouldn't let me."*fn6 This conversation ended with Martin's promise to discuss the matter with his union representative, but he never did so.
The case was tried before an administrative law judge (ALJ) on February 9, 1981. Mr. Spurgeon testified at the hearing that he had had three reasons for deciding on June 4th to reschedule vacations. First, he believed that the company had a contractual right to do so. Under the management rights and vacation clauses of the collective bargaining agreement, management had the right to control the production schedule, and to reschedule vacations as necessary without the consent of the Union (or, for that matter, of the affected worker). Spurgeon testified that all workers who chose not to join the strike would have been called to work. Second, strike vacation rescheduling was in accord with past policy. During a 1974 strike, employees had been given the option of paid vacation during the strike with unpaid time off afterwards, or a paid vacation after the strike. Before a threatened 1977 strike, a notice had been posted stating that all vacations would be rescheduled in the event of a strike. Spurgeon also testified that during a strike at another Stokely plant, with employees represented by the same union, the same policy of rescheduling strike period vacations had been followed. There had been no legal challenge to Stokely's policies in any of these cases, and no individual grievance over vacation rescheduling had been taken as far as arbitration. Third, Stokely took the position that a vacation meant time off from work, and that employees could not be scheduled for time off from work if they were not working. This view is consistent with the employee's contractual right to paid time off but not to vacation pay per se. The ALJ completely credited Mr. Spurgeon's testimony, and his statements about the contract and about past practice were supported by documentary evidence.
The ALJ also rejected the General Counsel's proffered evidence of antiunion animus. The General Counsel relied solely on two remarks made by supervisory personnel. First, on June 6th, Martin asked his plant superintendent why his vacation check was not forthcoming. According to Martin, the supervisor replied that "it was the Union's fault, because during negotiations, they had expressed the desire to go out on strike if the contract hadn't been settled by midnight." Second, a week later another employee asked the employee relations manager why he did not receive a check for his June 16th vacation, and was told that vacation checks were canceled because "you couldn't be on vacation and on a strike at the same time." The ALJ found that neither comment evidenced hostility towards the Union. Rather, both were accurate statements of the supervisors' understanding of Stokely's view of vacation time. In his decision issued May 26, 1981, the ALJ concluded that no unfair labor practice had been committed, and recommended that the complaint be dismissed.
The General Counsel filed exceptions to the ALJ's recommendation, and the Board ultimately rejected the ALJ's decision, finding that Stokely had been motivated by antiunion animus, and that the Company's reasons for rescheduling the vacations were therefore pretextual. The Board concluded that the vacation rescheduling constituted "denial of earned vacations and vacation pay" in violation of sections 8(a)(1) and (3), and also amounted to "unilaterally changing the terms and conditions of employment respecting vacation pay and vacations" in violation of 8(a)(5). The Board ordered Stokely to pay to the eighty-two employees whose vacations had been rescheduled the amount of pay they would have received in the absence of rescheduling in addition to whatever paid vacation they had received after August 25th.*fn7 ...