Illinois Bell Telephone Co.

National Labor Relations Board - Board Decisions

Nov 24, 1969

179 N.L.R.B. 681 (N.L.R.B. 1969)

ILLINOIS BELL TELEPHONE CO. 681
Illinois Bell Telephone Company and System Council
T-4, International Brotherhood of Electrical
Workers . Case 13-CA-8479
November 24, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On June 26, 1969, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain unfair labor practices alleged in
the complaint and recommending dismissal of those
allegations, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel, the Charging Party, and the Respondent
filed exceptions to the Trial Examiner's Decision
and supporting briefs, and the Respondent filed an
answering 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 briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
therefrom the period they remained on strike in
excess of 30 consecutive days. They adopt the Trial
Examiner's view that net credited service and
seniority are unrelated and clearly distinguishable as
having different computation dates and serving
different purposes. However, the record does not
support this conclusion, but rather demonstrates
that when the Respondent said it would adjust the
net credited service dates of employees who
remained on strike, the Respondent was also saying
that it would adjust their seniority dates. For, as the
Respondent's attorney acknowledged, "[h]eretofore
an employee's net credited service date has usually
determined his seniority. . . ." Indeed, there is not
one instance in the record in which an employee's
net credited service date and his seniority date differ
once seniority vests, and the uncontroverted evidence
indicates that absences exceeding 30 consecutive
days were always subtracted from both seniority
time and net credited service time. In addition, the
collective-bargaining agreement, which is distributed
to all unit employees, makes numerous references to
the fact that, for various purposes, the seniority date
is equal to the net credited service date. And, while
an employee's net credited service date serves as the
basis for computing benefits different from those
based on seniority, the employee benefits
enumerated in the Respondent's letter as those
adversely to be affected by the threatened deduction
included such ambiguous terms as "benefits" and
"other items," which employees could reasonably
interpret as benefits computed on the basis of
seniority. Finally, unlike the majority, I do not view
the Respondent's apparently changed position or its
attempt at clarification long after the June 4 threat
was made as diminishing the unlawful impact of the
threat. Accordingly, I would find that the
Respondent violated Section 8(a)(1) of the Act.
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.
Member Brown, dissenting in part:
Unlike my colleagues, I am convinced that the
Respondent illegally threatened strikers with loss of
seniority by its June 4 message that if strikers
remained on strike beyond June 6, it would adjust
their net credited service date by deducting
'Contrary to our dissenting colleague, we agree with the Trial
Examiner's conclusion that the Respondent did not threaten to withhold
seniority from employees, for periods they were on strike We note, as he
did, that during negotiations, as well as in its August 25 strike bulletin, the
Respondent expressly made clear its position that seniority rights, as
opposed to net credited service, remained unimpaired Thereafter, in the
strike settlement agreement, the Respondent incorporated, and later in the
new collective-bargaining agreement offered to incorporate, specific
assurances to the same effect These factors, in our view, confirm the Trial
Examiner's finding, also supported by other evidence, that only "net
credited service" and not "seniority" was involved in the' Respondent's
June 4 message to strikers
TRIAL EXAMINER'S DECISION
SAMUEL M. SINGER, Trial Examiner This case was
tried before me in Chicago, Illinois, on March 27, 1969,
based upon a charge and amended charge filed on June 7
and July 19, 1968, and a complaint issued thereon on
February 25, 1969. The complaint, as amended at the
hearing, alleges that Respondent threatened and prevented
striking employees from accumulating seniority, thereby
violating Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended All parties appeared and were
afforded full opportunity to be heard and to examine and
cross-examine witnesses All filed briefs.
Upon the entire record in the case' and my observation
of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
I BUSINESS OF THE COMPANY; LABOR ORGANIZATION
INVOLVED
Illinois Bell Telephone Company (Bell), an Indiana
corporation, with principal office and place of business in
'Transcript corrected by my order on notice dated June 4, 1969
I79 NLRB No 119
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Illinois and Indiana, is engaged in the business of
providing telephone services as part of a nationwide
telephone system During 1968, a representative period, it
derived gross revenues in excess of $1 million from
communication services between places in Illinois and
Indiana and places in other States I find that Bell is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
The Charging Party, System Council T-4, represents,
for bargaining purposes, Local Unions Nos. 134, 165, 315,
336, and 399 of . the International Brotherhood of
Electrical Workers, AFL-CIO Each of those locals
(collectively referred to herein as the Union) is a labor
organization within the meaning of Section 2(5) of the
Act
'A The Facts'
Respondent and the Union have long had contractual
relations From May 8 to September 23, 1968,' the almost
12,000 Bell employees representated by the Union struck
Respondent to support economic demands in mid-contract
negotiations under a wage reopener clause • in the
subsisting collective agreement On June 4 , Bell notified
its employees
IMPORTANT MESSAGE TO ALL EMPLOYEES
If you have been off the job on an unpaid absence,
you should know it is a long-standing Company
practice to adjust an employee's net credited service
date whenever the number of unpaid days of absence
exceeds 30 consecutive days ( Service dates are
important in computing such things as vacation
allowances , benefits, • pension dates , and other items )
'If any employee who has not been reporting for work
because of strikes does report for work by June 6, 1968,
no adjustment in the service date will be made But
under this practice, any employee who has been absent
because of strikes and who does not report for work by
June 6 will have his service date adjusted by the
number of unpaid consecutive days absent in excess of
30
All unions representing Illinois Bell employees have
been reminded of this practice and advised that this
information is being distributed to all employees
ILLINOIS BELL
TELEPHONE
COMPANY
The record establishes , and I find, that while some
employee benefits were and are based on seniority , others
depend on "net credited service "° Thus, an employee's
seniority position has "an important effect" on choice of
vacation time , promotion eligibility, choice of hours, and
order of layoff and recall His net credited service
determines length of vacation , entitlement to pension, sick
benefits , and termination pay, as well as telephone
concessions (employees with 30 years ' service are'entitled
to certain free services ). If an employee has worked
uninterruptedly , his seniority date ( normally the hiring
date ) and net credited service date are the same However,
if he has absented himself in excess of 30 consecutive
days, his net credited service date is adjusted to reflect
time absent in excess of the 30 consecutive days • Absences
'Based on documentary evidence , stipulations , and uncontradic.ed
testimony of C C Boylls, Respondent ' s assistant vice president in charge
of labor relations General Counsel rested his case after offering documents
and stipulations Boylls was called by the Charging Party and Respondent
'Unless otherwise indicated , all dates are 1968 1
on account of union business or military service are not
counted as breaks in service, nor are paid vacations and
sick leave
Although Bell's net credited service date adjustment
practice was never incorporated in any collective
agreement, this practice (according to Assistant Vice
President Boylls' uncontradicted credited testimony) has
been in effect for "many years" even though the
"corporate general bulletins" and interoffice memoranda
referring to this practice were never distributed to
employees. Boylls ' indicated that the practice was
uniformly applied to absences "for whatever reason "
Personnel records, open to employee inspection, list the
employee's net credited service date when that date does
not correspond to the "normal" date of hire or seniority
date
Respondent concedes that it adjusted the net credited
service, dates of all strikers absent over 30 consecutive
days for striking in the manner just described - an action
affecting strikers' employment rights dependent on length
of service On the other hand, General Counsel admits
"that the Company has not actually adversely affected the
seniority of strikers or benefits dependent upon that
seniority because of participation in_the strike " (G.C br
p 7 ) It is undisputed that in periodical "strike special"
bulletins, Bell notified strikers that although their seniority
remained unaffected they stood to lose,benefits'based on
length of service Thus, its August 25 bulletin states
Any time a person is off the job on an unpaid absence
for more than thirty days, for any reason, it has always
been the company's practice to deduct that absence
from the employee's net credited service date. This does
not 'affect seniority, but it does affect some other things
For example, [Union] members had been off the job for
nearly four months They have performed no work for
the company. We do not feel that the company should
continue making payments in the pension fund when an
employee has been off the job more than thirty days
There is nothing illegal about this long-standing
practice
Section 6 of the September 18 strike settlement agreement
incorporates the above-described Bell policy and practice
in the following language
Any unpaid time in excess of 30 consecutive days
will be subtracted from that employee's, net credited
service date, except the time, absent on strike will, not
affect his seniority, his wage progression date, or reduce
benefits already accrued at the beginning of the strike
Inclusion 'of this provision in the settlement agreement
was over the objection of the Union', which maintained
that the question 'of legality of the net credited' service
date adjustments was pending before the Board A new
(January '22, 1969) collective agreement embodied the
same provision .(section 6), with the Union expressly
reserving (in section I I) its right to litigate the matter in
this proceeding.6
''`Net credited service" means total "continuous service" with companies
(not only Respondent) in the Bell system, "minus any deductible time"
(i e , "unpaid absence in excess of thirty days") "Net credited service
date" is the date when net credited service begins
'Some employee records are kept by the employee's 'local supervisor'
(i e , "wherever he may be working in a particular garage") and others in
the Personnel Department ("main office") Counsel for Charging Party
produced the Personnel Department cards of only two employees,
explaining that he had not known of the existence of "local" records
'Subsequent to the strike Respondent also commenced to notify affected
employees individually of this change in' their net credited service date,
with a 'covering note expressly assuring that " adjustment in
ILLINOIS BELL TELEPHONE CO. 683
B Conclusions
The complaint alleges'that Respondent violated Section
8(a)(1) and (3) of. the Act by threatening and preventing
striking employees from accumulating seniority for a
period of the strike In, proof of the alleged violation,
General Counsel relies on Bell's June 4, 1968, notification
to strikers'that pursuant to "a long-standing Company
practice" . to reduce net credited -service "whenever the
number of unpaid days of absence exceeds 30 consecutive
days," any striker "who does not report to work by June
6 will have his service date adjusted by the number of
unpaid consecutive days- absent in excess of 30 " It is
undisputed, that Respondent in fact so adjusted net
credited service dates of strikers, affecting benefits, such
as vacations and pensions, dependent on length of service
I - find and conclude that under the described
circumstances no violation of the Act has been shown.
I The legal principles here controlling were enunciated
by the Board over 20 years ago in General Electric
Company, 80 NLRB 510 There the employer withheld
wages and "continuous: service credit" during a 9-week
strike while granting both to nonstrikers who made
themselves available for work: In directing the employer
to restore 9 weeks' service credits for some purposes but
not for others, the Board drew a distinction between (a)
service credits used for determining fringe benefits such as
vacations and pensions and (b) those used for determining
seniority standing As. to (a), the Board held that
vacations and pensions were "deferred benefits" in the
nature of wages for services rendered, that the employer
was not required "to finance" a strike against' itself; and
that there was nothing unlawful in denying, to strikers
accrual of these benefits during the strike while permitting
such accrual by nonstrikers. As to (b), the Board held that
"[u]nlike wages, vacations, and pensions, whose sole
aspect is monetary compensation for work performed
during 'the employment relationship, relative seniority, as
applied in the Respondent's plants, in addition to' any
compensatory characteristics it may possess, is-one of the
factors upon which the individual employee's tenure of
employment may depend", and that, therefore, to deny
the- strikers accrual of seniority during the strike while
permitting accrual by nonstrikers constituted unlawful
discrimination in violation of Section 8(a)(3) and (1) of
the Act
As recently shown by Trial Examiner David S
Davidson in a wellreasoned and exhaustive I analysis of
recent cases bearing on this subject (Kimberly-Clark
Corporation, adopted by the Board, 171 NLRB No. 82),
the Board "has held to its General Electric decision in
subsequent cases." The Board's post- General Electric
decisions have consistently adhered to the 'principle that
strike time need not be treated as work,time in measuring
employer obligation for payment of future benefits such as
vacations and pensions. Strikers render no, "service"
during a strike; -they withhold, it. See Mooney Aircraft,
Inc ; 148 NLRB 1057, 1059; Ace Tank and Heater Co.
167' NLRB No 94,' United Shoe Machinery Corporation,
96 NLRB' 1309, 1316, 1324-25, Tex-Tan Company, 172
NLRB No 93, Great Dane Trailers, Inc , 150 NLRB 438,
439, affd 388 U S 26; cf Quality Castings Company v.
N L R B , 325 F 2d 36 (C A 6), denying enforcement of
length-of-service date will have no effect on your seniority,-choice of hours,
choice, of vacation , or wage progression dates " Because of a threatened
work stoppage thereupon , Respondent and the Union agreed that further
individual notification would be discontinued
139 NLRB 928, 930.
2. Here, Respondent did not change any seniority date
because of the strike nor affect any-benefit (such as choice
of vacation time and work hours, promotions, and layoffs
and recall) derived from seniority. On the contrary, Bell
recognized the seniority of the strikers as if they had been
working It merely adjusted strikers' net credited service
dates, subtracting strike time in excess of 30 days for
purposes of determining benefits . such as length of
vacations and amount of pensions and sick pay, which by
their very nature depend on employee work contribution
As Respondent urges (br p 3), by giving all strikers full
service credit for the first 30 days of unpaid absence, it
went even further "in paying benefits for strike time than
could be required by law " Moreover, it is undisputed that
even while the strike was in progress Respondent paid all
of its employees - strikers and nonstrikers alike - the
full vacation pay due them based on accumulated
seniority Cf Great Dane Trailers, supra
3 Although conceding that Respondent "has not
actually adversely affected the seniority of strikers or
benefits dependent upon seniority," General Counsel
nonetheless contends (br p 7) that Bell violated Section
8(a)(l) of the Act on the "theory that, by the June 4
message, Illinois Bell unlawfully threatened each employee
on strike that he could not accumulate seniority and
employment rights dependent upon seniority during the
period he participates in the strike in excess of 30
consecutive , days and .because he participates in the
strike "' This contention is predicated on the claim (br p
4) "that pursuant to the relevant collective-bargaining
agreement and pursuant to 'practice' an, employee's net
credited service date and his seniority date are identical "
I do not agree Although the contract itself is by no
means clear on the sub9ect,e Respondents long-standing
practice is As previously shown, Respondent has for
many years differentiated between benefits derived from
seniority and those derived from net credited service To
be sure, ' the seniority (or hiring) date prior to the 1968
strike unusually coincided with net credited service date,'
but absences exceeding 30, consecutive days were always
subtracted from length of service. Nor did Respondent's
June 4 message to the strikers suggest any possible
adverse impact on seniority, referring as it did only to
possible loss of "net credited service" utilized "in
'In view of his concession that Respondent did not actually cause the
strikers to Inse benefits derived from seniority, it appears that General
Counsel has abandoned the allegation of the complaint that Respondent's
conduct also constituted a violation of Section 8(a)(3) Nor does General
Counsel, in his brief, claim an 8(a)(3) violation Nevertheless , the Charging
Party continues to press the view that there ' was such violation on the basis
of a theory not espoused by General Counsel See infra, fn 4
'Thus , although the contract ( article 21, sec 3(a)) provides that
employees " in service " before.August 8, 1947, "will have their original
seniority date established on the basis of their net credited Bell System
service date," it appears that time served in certain work groups after that
date does not always increase "seniority " An employee who has had
several years ' service with any employer in the Bell System other than Bell,
cannot apply such service to compute seniority at Bell until he has worked
18 consecutive months at Bell (article 21, sec 5(c)) Employees with some
service ( less than 6 months in a 12-month period ) have no seniority at all
(article 21 , sec 3 (6)) While the collective agreement stipulates (article 21,
sec I) that "benefits ," including vacations and sick pay (articles 17 and
20), shall be computed on the basis of net credited service ; it is also
stipulated that such matters as promotions , shift preference , and layoffs
shall be based on "seniority" (article 21, secs 6 and 7)
'See Company counsel's September 27 letter to General Counsel (in
course of the investigation of the charge ) where it is stated that
"[h]eretofore an employee's net credited service date has usually
determined his seniority " Although there had `been "some short
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
computing such things as" amounts of vacations and
pensions. Under the circumstances, it is apparent that the
June 4 letter was in effect only an accurate reminder of
economic consequences of continued strike absence. As
such, Bell's action was no more a violation of Section
8(a)(l) than the action of an employer who informs
economic strikers that they are vulnerable to permanent
replacement or that, beginning on a date certain in the
future, it will commence hiring replacements to fill their
jobs.'" "How then can it be said that warning of what the
company had a right to do, without notice, constituted an
unfair labor practice?" Kansas Milling Co v N L R B,
185 F 2d 413, 420 (C A 10). "Ordinarily, what you may
do without liability you may threaten to do without
liability " Justice Holmes in Silsbee v Webber, 171 Mass
378, 380, 50 N E 555, 556
In reaching this conclusion, I have not overlooked
General Counsel's contentions (br. p 6) that the June 4
letter failed to reassure the strikers concerning seniority
retention, and, more importantly, that Respondent's
established policy on seniority and net credited service was
never formally communicated to its employees prior to
June 4. The record establishes, however, that personnel
records, open to employee inspection, enabled employees
to check their seniority and net credited service dates and
to ascertain variances (if any) therein," that in course of
the strike (during negotiations and in the August 25 strike
bulletin) the Company expressly made clear its position
that seniority rights remained unimpaired, and that in the
strike settlement agreement Respondent incorporated, and
later in the new collective agreement offered to
incorporate, specific assurances to the same effect
Moreover, while not determinative of the question, there
is no evidence that the June 4 letter actually operated to
restrain employees from participating in the strike, which
was substantially 100 percent successful 11 Furthermore,
even if members of the Union were confused or misled
into believing that the June 4 notice affected seniority - a
fact not established by evidentiary showing - the Union
could readily have clarified the matter for them Cf
Kansas Milling Co v N L R B, 185 F.2d 413, 420 (C A
10). The Union apparently made no attempt to do so even
after it became fully aware of the basic problem through
its express contractual reservations described above
4 There remains for consideration Charging Party's
contention (br p I) that "the employer's conduct in
actually moving the service date, and thereby affecting
employee rights and benefits, amounts to illegal
discrimination within the meaning of [Section 8(a)(3),of]
the Act " Relying on the Supreme Court's decisions in
N.L R B v Erie Resistor Corporation, 373 U.S. 211, and
N L R B v Great Dane Trailers, Inc , 388 U.S 26, the
Union, in a claim not subscribed to by General Counsel,
urges that "the decision in the General Electric case no
longer is valid particularly in light of the facts in the
instant case" (br p 10) It strenuously argues that
General Electric "fails to take into, account the fact that
strikes" previously, the 1968 strike was the first involving more than 30
days' continuous absence
"See, e g, James Hotel Company , 142 NLRB 761, 764, N L R B v
Wooster Division of Borg-Warner Corp , 236 F 2d 898, 905-906 (C A 6),
affd in part and reversed in part on other grounds 356 U S 342
"No employee was called by General Counsel or Charging Party to
contradict Company Official Boylls ' testimony to this effect
"As General Counsel correctly points out , the success or failure of
coercive employer conduct is immaterial in determining an 8(a)(I)
violation, the critical question being the reasonable "tendency" of the
conduct See N L R 8 v Illinois Tool Works , 153 F 2d 811, 814 (C A 7)
pensions and vacations besides being similar to wages are
also essential conditions of employment" (br p 9), that
the Supreme Court in the cited cases established the
principle that in maintaining "their employer-employee
relationships," strikers, "continue to be entitled to all of
the' rights and benefits derivative therefrom" (br p I I),
and that here "where employees [were] subject to the loss
of as much as a full week's vacation" and of "substantive
remuneration m,their pension amounts due to having their
service dates moved" (br. pp 9 and 10), the employer's
action had a "detrimental" and "inherently disruptive"
effect on employee rights "
In Erie Resistor, supra, the Supreme Court upheld the
Board's finding that the award of superseniority to
replacements and to strikers who abandoned the strike
constituted discrimination within the meaning of Section
8(a)(3), as well as coercion within the meaning of Section
8(a)(l) of the Act In Great Dane, the Court upheld the
Board's finding that the employer similarly, violated the
statute by refusing to pay strikers vacation benefits
accrued and attributable to time worked before the strike
while announcing its intention to pay such benefits to
nonstrikers The rationale underlying these decisions, as
stated in Great Dane (388 U S at 34), is that "once it has
been proved that the employer engaged in discriminatory
conduct which could have adversely affected employee
rights to some extent, the burden is upon the employer to
establish that it was motivated by legitimate objectives
since proof of motivation is most accessible to him "
However, in neither case did "the Company .[come]
forward with evidence of legitimate motives for its
discriminatory conduct " (Ibid )
I agree with Trial Examiner Davidson's conclusion in
Kimberly-Clark, supra (171 NLRB No. 82), that the cited
Board and Supreme Court decisions neither reversed nor
were intended to reverse the General Electric doctrine
Indeed, the Board specifically distinguished General
Electric in its Great Dane decision 11 As Trial Examiner
Davidson pointed out.
"Contrary to Respondent 's contention (br pp 12-13), 1 do not regard
the "theory" advanced by Charging Party as an attempt (beyond its
power ) to amend or "unilaterally" enlarge the complaint, simply because
this theory is not pressed or espoused by General Counsel Cf Ba/any, v
Local 1031, Intl Brothd of Electrical Workers, AFL-CIO, 374 F 2d 723
(C A 7), Intl Union of Electrical , Radio and Machine Workers,
AFL-CIO INECO Electrical Products Corp / v N L R B , 289 F 2d 757,
760-762 (C A D C ) Here the Union ' s position readily falls within the
broad scope of the issues framed by the complaint alleging violation of
Section 8 (a)(3) as well as of Section 8(a)(I) It is to be noted that General
Counsel has not formally withdrawn the 8 (a)(3) allegation, although he
appears to have abandoned it "Once the Board files a complaint on the
charge presented, the charging party is entitled to have a chance to be
heard " International Union , United Auto , Aircraft and Agricultural
Implement Workers of America, CIO [Borg-Warner Corp / v N L R B.
231 F 2d 237, 242 (C A 7 ), Marine Engineers' Beneficial Association No
13 /Taylor & Anderson/ v N L R B , 202 F 2d 546, 549 (C A 3) And the
General Counsel "cannot [any longer] limit the scope of the decision which
may be rendered upon the evidence adduced The proof having been
admitted what is to be done with it is no longer a part of the
prosecution of the cause " Frito Company, Western Division v N L R B,
330 F 2d 458, 464 (C A 9) See also N L R B v Fant Milling Co , 360
U S 301, 307-309
"Thus, in finding the violation in Great Dane. the Board noted (150
NLRB 438, 439 ) that General Electric presented a situation "where the
accrual of future vacation benefits, based on the performance of services or
its equivalent , was allowed to nonstrikers but disallowed for strikers",
whereas in Great Dane "we are not awarding vacation pay to the strikers
based,on any period in which they were on strike, but are rather adopting
the same eligibility requirements , such as total hours worked in the
preceding year , as the Employer imposed on the nonstrikers " 150 NLRB
ILLINOIS BELL TELEPHONE CO. 685
The principles set forth in Great Dane Trailers were
drawn by the Supreme Court from its decisions in
N L R B v Erie Resistor Corp , 373 U S 211,
American Ship Building Co v. N L R B, 380 U S 300,
and N.L R B v Brown, 380 U S 280, and do not
purport to extend the reach of Section 8(a)(3) These
principles spell out the considerations which follow
when an economic justification is asserted for conduct
which would otherwise be regarded as discriminatory on
its face. They come into play only after it has been
determined that discriminatory conduct has occurred.
The essential prerequisite to the invocation of the
Great Dane principles is lacking here insofar as the
denial of service credits is concerned The axiom of
General Electric, that an employer need not remunerate
strikers for work not performed, means simply that it is
no more discriminatory for an employer to deny
compensation for absence due to strike than to deny it
for any other period of absence This is not to say that
a case may not arise in which an antiunion motive for
such conduct can be affirmatively shown by extrinsic
evidence so as to render it unlawful, but it is to say that
absent such a showing discriminatory intent is not to be
inferred from the mere denial of benefits I conclude
that just as the Supreme Court stated in Erie Resistor,
that it had "no intention of questioning the continuing
vitality of the Mackay rule," which permits the
permanent replacement of economic strikers without an
affirmative showing of the employer's objective in each
case, in Great Dane Trailers it had no intention of
questioning the rule of General Electric (Footnotes
omitted )
Trial Examiner George Turitz' analysis in Tex-Tan
Company, 172 NLRB No 93, also adopted by the Board,
is fully consistent The Trial Examiner there stated
Tex-Tan's disqualification of employees for vacation
pay because of absence while on strike, would have the
natural effect of discouraging strike activity and union
membership unless the disqualification served Tex-Tan's
legitimate business interest in some significant fashion
See American Ship Building Co v N L R B, 380 U S.
300, see also N L R B v Great Dane Trailers, Inc ,
388 U S 26 When, because of strike absence, an
employer reduces an employee's vacation to an extent
reasonably commensurate with the employees'
withholding of work, a legitimate business interest is
being served which is significant in that the deferred
wage - which vacation money is, see General Electric
Company, 80 NLRB 510, 511 - is paid only for the
work contribution called for by the vacation plan In
such a case there is no discrimination which discourages
union membership. . As Tex-Tan's plan called for
vacation payments based directly upon the employees'
work contribution, its reduction to the extent of the
employees' failure to work during the strike, which was
automatic since based on earnings, would represent a
legitimate business interest of Tex-Tan and would not
be violative of Section 8(a)(3). However, insofar as
vacation payments were denied the employees because
of considerations based upon years or months of
service, not related to the work contributions which
measured the vacation payments under the plan,
Tex-Tan's equating strike absence with normal absence
served- no business interest sufficiently significant to
counterbalance the destructive impact which denial of
the vacation pay had upon the employees' right to
engage in strikes See N L R B v Great Dane Trailers,
Inc , supra
Here, the reductions in vacation and other benefits,
based upon strike absences, were entirely "commensurate
with the withholding of work" and, therefore, represented
"a legitimate business- interest " There is no substantial
credible evidence whatever that the reductions were
motivated by antiunion considerations Accordingly, I find
and conclude that Respondent did not unlawfully
discriminate against its employees in violation of Section
8(a)(3) of the Act by adjusting their net credited services
dates to reflect strike absences, nor interfere, restrain, and
coerce them in violation of Section 8(a)(1) of the Act, by
forewarning them (on June 4) that it would make such
adjustments. ,
RECOMMENDED ORDER
Upon the basis of the foregoing findings and
conclusions and upon the entire record, it is recommended
that the complaint as amended be, and the same is, hereby
dismissed in its entirety