NLRB v. Rexall Chemical Company, 27885 Summary Calendar.

• Decision Date: 19 December 1969
• Docket Number: No. 27885 Summary Calendar.,27885 Summary Calendar.
• Citation: 418 F.2d 603
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. REXALL CHEMICAL COMPANY, a Division of Rexall Drug and Chemical Company, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

418 F.2d 603 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. REXALL CHEMICAL COMPANY, a Division of Rexall Drug and Chemical Company, Respondent.

No. 27885 Summary Calendar.

United States Court of Appeals Fifth Circuit.

October 30, 1969.

Rehearing Denied December 19, 1969.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Elmer P. Davis, Director, Region 16, N.L.R.B., Ft. Worth, Tex., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, John I. Taylor, Jr., James P. Hendricks, Attys., N.L.R.B., for petitioner.

Hershel A. Phillips, Los Angeles, Cal., William L. Keller, Allen Butler, Clark, West, Keller, Sanders & Ginsberg, Dallas, Tex., for respondent.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

DYER, Circuit Judge:

This is a petition for enforcement of an order of the National Labor Relations Board.¹ The company was found to have violated Section 8(a) (1) of the Act (29 U.S.C.A., Sec. 158(a) (1)) by announcing and granting an improved vacation plan in order to dissuade its employees from engaging in their Section 7 rights. Concluding, as we do, that there is substantial evidence on the record as a whole to support the Board's finding we enforce the order.²

Shell, El Paso Products, General Tire and Rexall are all petro-chemical plants located in Odessa, Texas. In 1965 Shell adopted a policy of giving its employees a three week vacation for those that had been employed for five years ("three for five"). El Paso adopted a like policy in July, 1966. General Tire fell in line in late fall 1966. Until Rexall announced on March 20, 1967, a "three for five" vacation plan effective April 1, 1967, its employees with one to ten years of service were entitled to receive only two weeks' vacation.

Rexall, disclaiming any anti-union animus or knowledge of an active union organizational campaign, urges that it had very good business reasons for not announcing a new vacation policy until it did so. General Counsel, on the other hand, argues that the company's action was to discourage union support.

From its inception in 1961 Rexall experienced union activity without incident and generally was competitive with others in establishing wage rates and other benefits. Beginning in 1965, however, Rexall's local management in Odessa, aware of the employees' discontent with the existing vacation policy, had made recommendations to the company headquarters to increase the vacation period from two to three weeks for those having five years' longevity. Nothing happened. For some months prior to January, 1967, Rexall's employees had made it known to management that they were "going to get `three for five or organize"' and had openly called Production Superintendent Fife, "three for five Fife."

When vacation schedules were circulated in January, 1967, providing for only two week vacations as in past years, the plant employees contacted a union representative,³ who promptly mailed organizational literature and cards to all of the plant employees. There followed membership solicitations, organization decisions and the posting of "three for five or organize" signs on the plant bulletin boards.

On February 6, 1967 the plant manager, having seen the union organizational literature, sent a letter to the employees in which he attempted to discourage them from becoming interested in union representation "interferring sic in our company and the way we work together." About March 6, 1967, the plant manager received word from the company's Administrative Vice President that the "three for five" vacation policy had been approved effective April 1, 1967, and this was announced to the employees on March 20, 1967.

Pointing out that it is a conglomerate of companies operating in diverse fields, Rexall argues that it was concerned about the overall effect of liberalized vacation benefits which would be restricted to its Odessa plant and thus it was necessary for the company's executives in Los Angeles to have the benefit of surveys over a protracted period of time to make such an important management decision. Furthermore, the company submits that there was no real reason for improved vacation benefits until the precise time that they were announced. Rexall argues that local management had freely discussed improved vacation plans with the employees since 1966, and the employees knew that local management had recommended a change. The need for the change in vacation policy was dictated, the company urges, so that it could stay competitive and prevent a drain of its employees to the other petro-chemical companies. We are unpersuaded by the company's contentions.

Management at the Odessa plant had been making recommendations for a "three for five" vacation policy to the executive office in California since 1965. The company's explanation that until 1967 it had been making up its mind "places an unreasonable strain upon credulity that so egregious a time — perhaps as long as three years — would be required for making up its mind."⁴ Furthermore, the abrupt turnabout from the continued vacation policy of two weeks,...