Seeburg Corp.

290 DECISIONS OF NATIONAL LABOR ,RELATIONS BOARD Cavalier Division of Seeburg Corporation and Cavalier Corporation and Allied Industrial Workers, AFL-CIO, Local Union No. 289. Cases 10-CA-8029, 10-CA-8206, and 10-CA-8305 July 29, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On January 22, 1971, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the com- plaint be dismissed with respect to those allegations. Thereafter, the Respondent filed exceptions and a supporting brief, and a request for oral argument; the Charging Party filed cross-exceptions and a brief in support thereof and in answer to the Respondent's brief. Subsequently, the Respondent filed an answer- ing brief to cross-exceptions of the Charging Party. , 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 these cases 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 these cases, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner,2 as modified herein.3 1. We agree with the Trial Examiner that the Respondent's refusal to pay its employees accrued vacation pay as required by the contract was violative of Section 8(a)(3) and (1) of the Act. As found by the Trial Examiner, this case is distinguishable from the mere scheduling of vacations in that the contract in the instant case specifically provided for money to be paid in lieu of an actual vacation. Accordingly, these 1 We note that the Trial Examiner in one instance misquoted the contract language "if no vacation is scheduled that year," as "if no vacation is taken that year"; and erroneously referred to August I I as December I I in his concluding findings with regard to the vacation pay issue, to February 10 as February 12 in his concluding findings with regard to the refusal to furnish information, and to 1969 as 1961 in heading "D." 2 The Respondent excepts to the credibility determinations of the Trial Examiner. After careful review of the record, we conclude that these employees were lawfully, entitled to the vacation money withheld from them by their Employer, solely on the ground that they were engaged in an economic strike. With respect to the employer's unlawful motive, the Supreme Court has specifically held: (1) Antiunion motivation need not be proved where the conduct is . "inherently destructive" of important employee rights; (2),proof of antiunion motivation is necessary where the discrimination is "comparatively slight" only " if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct." lit L.R.B. v. Great Dane Trailers,388 U.S. 26. The Respondent advanced no reason of a business nature to justify withholding vacation pay during the strike. Respondent simply refused to pay its employees the money it owed them until the strike had terminated on the ground that it was under no "legal obligation to finance the strike." Carried further, Respondent's theory would provide it with a defense for withholding during the strike the employees' salary checks for past services, for this money would, in the same manner, "help finance the strike." In our opinion, Respondent has misconceived its legal obligations. While Respondent need not lend or give its employees money to "finance" a strike, it cannot lawfully deprive its employees of a benefit, including vacation pay, which they have earned until they terminate their strike. Such strike activity is protected by Sections 7 and 13 of the Act. Where, as here, Respondent has come forward with no adequate business justification for its conduct, specific proof of its unlawful motive, as indicated above, is not required. 2. We find, in agreement with the Trial Examiner, that the misconduct for which strikers Fletcher, Brewer, and Snyder, as well as Creek and Tarpley, were discharged after the strike, while not to be condoned, was not so egregious as to render them unfit for further employment, and that their discharge after the strike was therefore violative of Section 8(a)(3) and (1).4 On the other hand we do not agree that the suspension of Fletcher, Brewer, and Snyder pending investigation of the incident in which they were involved was unlawful. Although, as the Trial Examiner found, the evidence fails to establish that these three strikers were responsible, the death of employee Smith at the time of the incident justified their suspension until an inquiry could be made into the circumstances. credibility findings are not contrary to the clear preponderance of all relevant evidence. Accordingly, we find no basis for disturbing these findings. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). 3 The Respondent's request for oral argument is hereby denied, as, in our opinion, the record in this case, including the exceptions and briefs, adequately presents the issues and positions of the parties. 4 Terry Coach Industries, Inc., 166 NLRB 560, 563. 192 NLRB No. 37 CAVALIER DIV. OF SEEBURG CORP. 291 3. The Trial Examiner found that Leonard Rollins actively participated in a,plan sponsored by a "poor peoples' coalition" to boycott products of the Coca- Cola Bottling Company, the- Respondent's only local customer, and that therefore the Respondent's dis- charge of Rollins.was for cause. We do not agree. As the Trial Examiner, found, the record shows that the Union''s International specifically- ordered the Union's officers not to, participate in any boycott activity, that none of-_them `did, and that the Union itself was not involved in the-so-called boycott. In all the circumstances, we find that Rollins' conduct in -this respect, while not to be condoned, was not so egregious as to render Rollins unfit for further employment, and that Rollins' discharge for this reason was in violation of Section 8(a)(3) and (1) of the Act.5 - - 4. We also agree with the Trial Examiner that the Respondent refused to bargain with the Union at least since December 4, 1969, in violation of Section 8(a)(5) and (1) of the Act. Neither the filing of a decertifica- tion petitions nor the fact that a substantial number of employees elected to work during the strike 7 is sufficient to establish-that the Union had, in f act, lost its majority.- Moreover, the defense of a good-faith doubt of the Union's majority is without meritwhere, as here, an employer has engaged in substantial other unfair labor practices. As set forth above, we have found, that Respondent violated Section 8(a)(3) and (1) of the Act by withholding,vacation pay from the striking, employees and further violated that section of the Act '6y the discharges of employees Fletcher, Brewer, Synder, Creek, Tarply, and Rollins. To permit this-, - Respondent to avoid its bargaining obligations by taking advantage of disruptive strike conditions at a-time when collective bargaining has broken down does not, in our opinion, further the statutory objectives y_ or point the way to sound industrial relations policy. 5. The Trial Examiner found that the strike, economic in- origin, was prolonged and consequently converted- to an unfair labor practice strike by the Respondent's' unlawful refusal to pay accrued vaca- tion pay at ,the time the vacation period was originally scheduled. We find, however, that the Respondent's withholding of vacation pay was insufficient in itself to prolong the strike. Nevertheless, we agree with the Trial Examiner's finding that the Respondent's s Cf. N.L.R-B. v. Local Union No. 1229, International Brotherhood of Electrical Workers, A.F.L{ (Jefferson Standard Broadcasting Company), 346 US. 464, and Patterson-Sargent Company, 115 NLRB 1627, in which the strikers publicly disparaged their employer's product. 6 Massey-Ferguson, Inc., 184 NLRB No. 69, and cases cited therein. 7 Coca Cola Bottling Works, Inc., 186 NLRB No. 142. 8 Member Brown agrees with the Trial Examiner that the strike was converted to an unfair labor practice strike by the unlawful refusal to pay accrued vacation pay but would find that this refusal occurred on August unlawful refusal to bargain in December created serious impediments to the settlement of the strike. Accordingly, we find that the strike was converted from an economic to an unfair labor practice strike on December 4,1969 .8 6. As the strike became an unfair labor practice strike on December 4,1969, the Respondent's right to make replacements became vulnerable from -.that date. Accordingly, under-well-established Board and court precedent, Respondent was obligated to reins-, tate strikers as of February 7, 1970, when the Union made an unconditional application for reinstatement on behalf of all strikers, displacing, if necessary, all replacements hired after December 4, 1969.9 Upon the basis of the foregoing findings of fact and the entire record in this case, we hereby adopt the recommended Remedy and the sConclusions of Law of the Trial Examiner, except as modified herein. CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 4: "By discharging employees Fred Fletcher, Vernon Brewer, Edward, Snyder, Barbara Tarpley', Lora Creek, and Leonard Rollins in contravention of their rights under Section 7, Respondent has violated Section 8(a)(3) and (1) of the Act." 10 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order, the recommend- ed Order of the Trial Examiner as modified below and hereby orders that the Respondent, Cavalier Division of Seeburg Corporation and Cavalier .Corporation, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as herein modified: 1. Modify paragraph 1(b) by eliminating the phrase "by suspending." - 2. Modify paragraph 2(b) by including Leonard Rollins as a discharged employee entitled to reinstate- ment to the same or to a substantially equivalent position. 3. Modify ;paragraph 2(b) by changing July 21 to December 4. 4. Substitute the attached notice for the Trial Examiner's notice. 11, 1969, when the employees actually requested and were refused their vacation pay instead of July 29, 1969, as set out by the Trial Examiner. However, in the absence of agreement to the date of August II by any of. his colleagues, Member Brown certainly agrees with Member Fanning that conversion occurred at least by the later date, December 4, 1969. 9 Pecheur Lozenge Co.,, Inc., 98 NLRB 496, enfd. as modified 209,F.2d 393 (CA. 2), cert. denied 347 U.S. 953. 10 The number "(5)" should be deleted from Conclusion of Law 9. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CHAIRMAN MILLER, dissenting in part: I agree that the Respondent violated the Act by discharging strikers. Fletcher, Brewer, Snyder, Creek, Tarpley, and Rollins after the strike. However, I would not find the Respondent's deferral of vacation pay until October 30, 1969, unlawful. There is no contention, and no evidence, that the Respondent was discriminatorily motivated in rescheduling vacations for all its employees because, of-the strike-conduct - which the - Board - has held is not 'inherently discriminatory.ll I do not believe the comments of the Respondent's representatives in denying the Union's requests for immediate vacation pay, to the effect that it was under no. legal obligation to help finance the strike and would not pay until'the"strike was over, reveal a motive to punish employees for striking or to break the strike. On the contrary, the-Respondent was under no obligation,,, based on the contract as I read it, to pay vacation pay until it was no longer likely that vacations could ' be' scheduled within the period contemplated by_ the contract. When that period passed; payment was made. I would. also find no 8(a)(5) violation in the Respondent's withdrawal of recognition of the Union on December 4, 1969,' and its failure' to- furnish information requested by the Union on, February 7, 1970. The record facts show that on ecember 4, 1969, a decertification petition was pending; the strike had continued for more than 4 months; the Respon- dent had been hiring permanent replacements for the strikers since the end of October; and 357 employees were working and only 307 were on the picket line. In the"absence of any prior unfair labor practices, I would find that" a" real question of 'representation existed in the bargaining unit on December 4. Accordingly, the Respondent was under no obligation to bargain with the Union or furnish information until that question was resolved.12 ' Finally, I would find no unreasonable delay in the Respondent's failure to reemploy all' of the strikers before March 2, 1970, and no impropriety' in" the Respondent's request for a list of strikers available for reinstatement. As in my view the' Respondent had committed no unfair labor practices prior to the Union's request for reinstatement of the strikers, they remained economic strikers throughout the 'strike. Accordingly, prior to reinstating them, Respondent was entitled to determine ' whether they had in, the meantime obtained regular and substantially' equiva- lent employment ,elsewhere and did not desire reinstatement; whether they had been permanently replaced; whether,' 'even though replaced, vacancies had occurred thereafter`.towhich they were entitled; and whether misconduct which occurred during the strike barred their reinstatement.13 Moreover, in its letter to the Union, Respondent explained its need for the requested information, and the circumstances indicate that such a list wouldhave tended to expedite, rather than delay, reinstatement of strikers entitled thereto. In -addition, the record shows that the Respondent made a followup effort of its own to obtain this information from the strikers themselves. By -letters dated February 18, 1970, Respondent requested strikers from whom it had heard nothing to report within 5 days, either in person or by letter, whether they desired - reinstatement. Although some of these strikers did not reply,` others indicated their willingness to return to work and some of them were reinstated, while others declined job offers.14 Therefore, in my view, the majority's conclusion that Respondent's failure to reemploy, all "strikers before March 2, 1970, was violative of Section 8(a)(3) and (1) of the Act is not warranted.15 11 Texaco, Inc., 179 NLRB No. 152. Cf. N.L.&B. v. Great Dane Trailers, Inc., 388 U.S. 26. ` 12 See my dissenting opinion in Coca Cola Bottling Works, Inc., 186 NLRB No. 142. 13; Laidlaw Corp. v. N.LRB., 414 F.2d 99 (C.A, 7), cert. denied 397 U.S. 920. 14 Respondent presented in evidence, personnel records showing data such as , dates of - recall of individual strikers , acceptance or refusal of reinstatement offer, or failure to report. 15 See my dissenting opinion in Coca Cola, supra APPENDIX NOTICE TO EMPLOYEES' POSTED BY " ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of, the United States Government WE WILL NOT refuse to pay vacation pay when due because our employees are on strike. " WE WILL NOT discharge any of our employees because they engage in a lawful strike. W,E WILL NOT refuse to bargain with or give relevant information to Allied Industrial Workers, AFL-CIO, Local Union No. 289., WE' WILL NOT refuse to reinstate any ,'of our employees who were on strike as of February .7, 1970, who are entitled to reinstatement, and not permanently replaced before December 4,1969. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees ; in the exercise of their,right to form;.join, or assist, or be represented by, Allied Industrial Workers, AFL-CIO, Local Union No. 289, or any other labor organization, to bargain collectively through representatives of their own choosing, or-engage in other concerted' activities for, "the purpose, of collective bargaining or other mutual aid - or protection or to , refrain from any and - all such activities. WE WILL, upon request, bargain collectively with Allied Industrial Workers, AFL-CIO, Local CAVALIER DIV. OF SEEBURG CORP. Union No. 289, as the exclusive bargaining representative of our employees in the unit found appropriate with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement: All production and-maintenance employees of our Chattanooga, Tennessee, plant, in-, cluding group leaders, but excluding office clerical, plant'clerical employees, watchmen, guards, laboratory technicians, engineers, draftsmen, research development employees, assistant foreman, working, foremen, and all other supervisors as ,defined in -the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. WE WILL offer to-Fred Fletcher, Vernon Brewer, Edward Snyder, Barbara Tarpley, Leonard Rol- lins, and Lora S. Creek immediate and full reinstatement to their former jobs or, if those jobs no longer" exist, to substantially equivalent posi- tions,, without prejudice to their seniority or other rights and privileges, and we will make each whole for any loss of earnings that, each may- have suffered as a result of our discrimination against him. WE WILL also offer to all of our employees who were on strike up to February 7, 1970, and who were entitled to reinstatement pursuant to the request for the same made by Allied Industrial Workers, AFL-CIO, Local Union, No. 289, who were not permanently replaced before December 4, 1969, and who have not been reinstated to their former or equivalent positions reinstatement to their former or equivalent positions. WE WILL also pay them backpay for any loss of earnings which they may have suffered as a result of our not reinstating them within 5 days of their unconditional request for reinstatement or if they have been reinstated but not to the same or equivalent positions which they held before the strike. All our employees are free to become or remain, or refrain from becoming or remaining, members of Allied Industrial Workers, AFL-CIO, Local Union No. 289, or any other labor organization. CAVALIER DIVISION OF SEEBURG CORPORATION AND CAVALIER CORPORATION (Employer) 293 Dated - By (Representative) (Title) We will notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with, the Selective Service Act and the Universal Military Training and Service Act. This, is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered; defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner: Upon a charge filed in Case 10-CA-8029 on November 6, 1969, and a charge, amended charge, and second '-amended charge in Case 10-CA-8206, filed on March 4,3 1, and July227, 1970, respectively, and a charge filed in ' Case ' 10-CA-8305 on April 28, 1970, by Allied Industrial- Workers, AFL-CIO, Local Union No. 289, herein called the Union, the Regional Director for Region 10°of the National Labor Relations Board, herein called the Board, issued an Order of Consolidation and Complaint on July 30, 1970, against Cavalier Division of Seeburg Corporation, which .division, together with Cavalier Corpdration,l is herein called jointly the Respondent,'alleging 'violatioiis of Section; 8(a) (1), (3) and (5) of the National Labor Relations Act,', as amended (29 U.S.G. Sec. 151, et seq. ), herein called the Act. ,In its' duly filed answer to the complaint, the Respondent, while admitting certain allegations of the complaint, denied the commissionof any unfair labor practices. Pursuant to notice, hearing in ,this case was held before rite on various dates ` between September 9, 1970, and 'September 18, 1970. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence,2 to present oral argument, and to file briefs. Oral argument was waived. Briefs were filed by counsel for the General Counsel, the Charging Party, and the Respondent. I By stipulation at the hearing herein, Cavalier Corporation was added as a party Respondent. As of December 31, 1969, Cavalier-Division of Seeburg Corporation ceased to exist and Cavalier Corporation, which had previously been a sales branch , assumed ,the operations _and obligations. In effect, they are one and the same entity and they are treated herein as a single Respondent. There is no issue raised as to successorship. 2 Following the close of the hearing, Respondent moved to admit in evidence decisions of the Tennessee Department of Employment Security, (Continued) 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon consideration of the entire record, including the briefs of the parties, and upon my observation of the witnesses as they appeared before me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, has its principal office' and place of business located at Chattanooga, Tennessee, where it is engaged in the manufacture and sale of soft drink vending machines. During the 12-month period immediately preceding the issuance of the complaint herein, a representative period, Respondent sold and shipped goods of a value in .excess of $50,000 directly to customers located, outside the State of r Tennessee. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II.' THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction-Issues As hereinafter related in greater detail, Respondent and the Union had a bargaining relationship since the Union was originally certified in 1955. The Union was certified `again in 1962. A series of successive labor agreements were entered into, the most recent of "which expired on July 13, 1969. Following the expiration of this contract and a series ,of unfruitful bargaining, sessions,, ;the union membership voted to strike, which'strike commenced on July 21, ,1969. Thereafter, the Respondent's supervisory hierarchy and management representatives appeared, at .or near the union established _ picket line, with cameras; the Respondent postponed the payment of vacation.pay'allegedly accrued under the recently expired contract; the car of a nonstriking employee was followed by a car of a striking employee and the nonstriker died. Later there were a series of incident's on the picket line, some of which ,were violent in nature., In December 1969 a' decertification petition was filed and thereafter, alleging a ` belief that a question concerning representation existed, the Respondent refused to further bargain with the Union or give the Union requested information. 'The strike was-finally ended onFebruary 7, 1970, and, upon the Union's request, the Respondent permitted some employees to 'return but rejected others and, indeed, discharged' nine' who allegedly committed acts during the strike which the Respondent believed disqualified them from reinstatement. The General Counsel's complaint alleges, in substance, that the Respondent's use of cameras constituted unlawful impression' of 'surveillance of union activities; that the withholding of vacation,pay constituted unlawfuldiscrimi- Board of Review finding three of the discharged employees were discharged for gross misconduct. Over General Counsel's objections, the motion is granted and the documents are received as Resp. Exh. 25(a), (b), and (c) on the ground that they are relevant for whatever probative value nation against the striking employees; that Respondent's refusal to -bargain with, the Union after, the representation petition was filed and 'Respondent's refusal to give ,the Union requested, information was unlawful; that Respon- dent has unlawfully discharged and refused reinstatement to nine named employees and has failed to promptly and properly reinstate other employees upon their uncondition- al application. The Respondent's duly filed answer, denies most of the foregoing, allegations and, in- the case of the specific nine employees who were ultimately discharged, alleges that such discharges were for cause arising out of.-unprotected conduct of the employees during the strike. Moreover, as to the refusal'to bargain allegations, Respondent denies the Union's majority status ,and also alleges a good-faith doubt as to the Union'smajority. Thus the issues framed by thepleadings and contentions of the parties are: 1. Whether the Respondent unlawfully created the impression of surveillance of its striking employees' union activities by displaying and appearing: to use cameras to photograph picketing employees. 2. Whether Respondent discriminatorily refused to pay its striking employees', accrued vacation pay. 3. If the answer to either or both of the foregoing issues is in, the affirmative, whether the strike of the Respondent's employees was converted from' an economic' to' an' unfair labor practice strike: " 4. Whether the Respondent discriminatorily suspended - ' three striking employees. 5. Whether the Respondent discriminatorily later discharged these three employees and six other employees as well. 6. Whether the Union at all times material was and is the exclusive majority . representa five of Respondent's employees. 7. If the answer to issue six is in the affirmative, whether Respondent refused on certain dates 'and thereafter to bargain collectively with the Union and furnish it certain necessary information., 8. Whether when the strike was over the Union made a proper unconditional offer to return to work on behalf of its striking members and whether the Respondent reasonably, promptly, and' unconditionally, responded to,this offer by reinstating the striking employees to their former or equivalent positions. B. The Camera Incidents 1. The events As noted above, the most recent bargaining agreement betweenthe"Respondent andthe Union expired on July 19, 1969. On that day, because the parties had been unable to reach agreement on a new contract, the union membership voted to strike. On the same day, the Respondent rented a still camera and a -movie camera. On July 21, the Union commenced around-the-clock picketing of the Respon- dent's plant. From the first day that the pickets appeared, they may have on the legality of the discharges. See Newport Window Cleaning Co, Inc., 170 NLRB No. 131, fn. 6 CAVALIER DIV. OF SEEBURG CORP. various officials of the Respondent appeared at or near the picket -line with the cameras, and they continued to so appear with the cameras during the entire period of the strike which lasted until February 7, 1970. According to Robert L. Nisewonger, vice president in charge of manufacturing for the Respondent, and Jack Henry, the Respondent's personnel manager, they were given instructions by the Respondent's president, William Raoul, that the cameras, were to be used only for the purpose, of photographing illegal activity on the picket line such as mass picketing or violence. And, according to these two witnesses and to John True, the Respondent's president, the only times that the cameras were actually put into use were at times when unlawful activity did, in fact, occur at the picket line. Thus, Nisewonger testified that on the morning of November 3, 1969, as the working employees came into -the,,plant there were rocks and fire bombs thrown and Nisewonger tried the best he could to take pictures of'what was happening on the movie camera. He also took a picture with, the same camera of one of the strikers, Arthur Colen, hitting one of the nonstrikers in the face. He could not identify the date that he took the latter picture. Other than those two times he never took a picture of anybody on the picket line nor did he ever point or direct the camera toward anybody on the picket line. Henry, personnel manager,' testified that he used the camera at one time to take a picture of Union President Fletcher's car following the car of George Carlton Smith, who later died of a heart attack. Henry also took pictures of a large quantity of nails thrown in the driveway at the main entrance to the plant. Then, during October 1969, Henry noticed that Fred Fletcher was using a camera at the plant entrance taking ' pictures, and pointing the camera at workers entering and leaving the plant. The attorneys for the Resondent told Henry- that he should take pictures of Fletcher' using his camera. Henry emphatically testified that other than those pictures he took none whatsoever. Nor did he ever on any occasion put a camera in such a position that one could reasonably believe that he was taking pictures. President True testified that the only time he took a picture of anyone during the strike was during the riotous morning, of November 3, NO. On that morning he took a picture of a man by the name of Cooper throwing a rock, At no othei time -did he point the camera toward anyone on the picket -line.' - In substance, the General Counsel's witness testified to the use of -cameras by the various Respondent officials somewhat as follows. Fletcher testified, that on September 23 he saw Henry using a, camera. But, as shown above, this was the time - that , Fletcher followed the car of George Carlton Smith. The details of this incident are hereinafter set forth in greater detail. Fletcher further testified that he never saw President True ' with a camera; that he saw Nisewonger -with one but did not testify that he saw Nisewonger use 'one;, and that he observed Henry appealing to take pictures during the month of October "whenever they started hiring new employees and anybody made a motion or stopped a car to talk to some of the 3 Since her testimony'is completely unsupported in any other respect, I find that Tarpley's description of the indiscriminate use of cameras is' not 295 nonstriking employees going in!, Employees Snyder, Rollins, and Green testified only that -they saw Henry, Nisewonger, and Musselwhite with cameras. Employee Brewer testified only that he saw-Henry and Nisewonger with cameras and saw them -both pointing cameras at the car in which Brewer, Fletcher, and Snyder were riding on September 23, again the episode of following-the Smith car. Employee Barbara Tarpley testified that she-saw Nisewon- ger, Henry, and Musselwhitewith cameras-and saw them at unspecified times taking pictures at, the point 'where automobiles came downto turn into the plant and when the pickets would stop and ask people.not to cross the picket line.3 It should be noted that the picture -taking of employees crossing the picket line to go to work during the month of October, 1969 by Fred Fletcher, president of the Union, was the subject of an unfair labor practice case against the Union in Case No. 10-CB-1851 in which 'case the Trial Examiner and the Board found that-the picture taking,by Fletcher was coercive and in violation of Section 8(b)(l)(A) of the Act. I find and conclude that the times at which the Respondent's officials actually used the cameras to take pictures ` of picket line activities were confined to those instances where -there was either violence, or a threat of the same on the picket line, or some incident which in itself constituted unprotected- activity. Thus, Nisewonger took pictures of striker Arthur Colen hitting a nonstriker in the face. Henry, on the other hand, used the camera only three times, during the September 23 car following' episode, at the time nails were thrown in the -road at the main plant entrance and during the times that Fred Fletcher took pictures in October' of employees coming to and from work. As noted above, these events, with the exception of the car following, were those for which the Union was found guilty of violations of the Act. Moreover, the testimony of Tarpley and Fletcher, regarding the October instances of Henry's picture taking, referred to that time when Henry took pictures of Fletcher taking pictures of the, employees entering and leaving the plant. Thus, I conclude that at any time the cameras of the Respondent's officials were used were at times when other than ordinary lawful picketing was taking place. 2. Conclusions as to the use of the cameras It is established by the record that the Respondent's officers and agents, namely, Henry, Nisewonger, True, and Musselwhite appeared at or .near the picket line with cameras from virtually the first day of the strike through virtually the entire period that the picket line appeared at the Respondent's premises. And, as related above, attimes the-cameras were used to actually photograph and to record incidents that occurred on the picket line. The, General Counsel contends that this displaying and appearing to use cameras as noted above created the impression of surveillance of employees' union activities. Counsel for the General Counsel also argues that it is apparent from a cursory view of the evidence that Respondent had no credible. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "reasonable .basis for anticipating violence" in the instant case and submits that the appearance of the cameras- and the use thereof was an attempt to coerce striking employees by creating the impression of permanently recording for future reference , acts antithetical to the Respondent's interests ; that is, engaging in the. protected,, concerted activity - of; striking and picketing. The Respondent, on the other, hand, argues that the use of the cameras was limited to those times when its purpose was to secure evidence of unlawful strike- activity. There is actually an indication in the record that, the pictures taken were used to support a state court injunction, especially after the violence of November 3, 1969, when rocks and fire bombs were thrown. While it is true that from the very beginning of the picketing activity -there was - no reason to anticipate violence,- nevertheless the Respondent's precautionary measures ; proved to be necessary with the development of the incidents as the picketing progressed and as the strike became prolonged. As found above, the actual picture taking was confined to those times when incidents occurred which could have developed into violence or which, did, indeed, develop into violence. Thus, the taking of the picture on September 23 of the far following incident in which Fletcher and others followed the car of Smith, a nonstriking employer, was the recording of an incident which could have developed into a serious one of unlawful strike activity. Certainly, it cannot be contended that the taking_of ,a picture bythe Respondent of nails strewn in the driveway of ,the- plant, entrance was an unnecessary act performed for the purpose, of coercing striking employees. Nor can any innocent connotation be applied,to the rioting on November 23 when the fire bombs and rocks were thrown at the plant entrance. Additionally,,the activity of Fletcher taking pictures of persons entering and leaving the plant which was found to have been an unlawful act by the Board could not be ,construed as protected picket line activity. In sum then, I find and conclude that the purpose of the picture taking was to, secure evidence of unlawful strike activity and that there is no basis in the record for finding ,that,the use of the cameras was an attempt to coerce striking employees by. creating the impression of recalling for future reference the acts of the picketing employees for the purposes of future reprisal. And the fact that the Respondent's officers and agents appeared at or near the picket line with cameras at other times did not constitute such surveillance. The Respondent under the circumstances could reasonably anticipate that such cameras would be used ' to gather 'necessary documentation for lawful purposes. Accordingly, I finally conclude that the Respon- dent did'not coerce its employees and did not create the impression of surveillance in such a manner as to constitute coercion, interference, and restraint in violation'of Section 8(a)(1) of the Act. Therefore, I shall order dismissed that allegation of the complaint which alleges such violations. C. The Withholding of Vacation Pay by the Respondent 1. Background and events All of the successive contracts between the Respondent and the Union from the contract dated March 20, 1960, to the most recently expired contract contain the following clauses with regard to vacations: ARTICLE 9. PAID VACATIONS Article 9, Section 1. An employee `will be entitled to -1 week of vacation pay each year upon completion of 1 year of continuous service and 2 weeks of vacation pay each year upon completion of 5 years -of continuous service , provided he has worked 1040- hours in the twelve-month period-prior to the vacation date and is in the Company's employ at the time the vacation,period begins. A first-year employee will receive his vacation pay upon completion of his 12 months of continuous service or at the vacation period, whichever comes last, His vacation pay thereafter will be issued to him at the time his vacation is taken, or on the first pay period in`:luly if no vacation is scheduled for that year. * * * * * Article A Section 3. The vacation period will be set by the Company to fall between June .15th and September 1st. Unless business reasons dictate, a specific period the preference of the employees will be followed in choosing the vacation dates. The vacations were given and the vacation pay was paid to the employees during,all of the period from 1960 through 1968 with the exception of the year 1962 when a 5-week strike occurred. At that time the vacation pay and the vacations were delayed until the end of the strike. On' May 1,; 1969, the Respondent posted a notice to the effect that the vacation for the year 1969 would be taken by all employees during the first 2 full weeks, in the month of August that year. During the same period of time that these successive contracts had been in effect, changes were made in the corporate structure' of the Respondent which had, as events developed, a profound effect on the financial condition of the Respondent. The Respondent was an - independent Company until December 1963 when the assets were sold to the Seeburg Corporation of Chicago. ` Until the fall of '1968, the Respondent had no great financial, problems. During those years the Respondent was in a pooled banking arrangement with Seeburg. All of the collections from the Respondent's customers in Chattanooga were deposited in the- local bank and then transferred to Seefiurg',s bank, in Chicago. The Respondent was then obliged' to call the Seeburg Corporation to notify it"what` bills were payable and then the ^ funds would be released from Seeburg to pay these bills. In this manner the Respondent was 'completely dependent- on Seeburg's banking: As long as Seeburg wa s independent the two companies got along fairly well. However, in the fall of 1968 a west" coast conglomerate named 'Co'mmonwealth United Corporation bought 96 percent of 'Seeburg's stock. Soon after that it -Became evident that the financial situation of Seeburg was deteriorating. Thi's became apparent as early as December 1968. The normal lending institutions - who financed Seeburg's operations withdrew their ^ line of credit. The CAVALIER DIV. OF SEEBURG CORP. 297 details are unimportant but it was definite that Seeburg was left with no commercial bank credit whatsoever. Further- more, other long-term creditors of Seeburg were closing in and demanding payment of debts. Beginning in December 1968 and periodically thereafter Seeberg would call and ask the Respondent to pull down its bank balance at the local banks to help Seeburg over some temporary obstacle and Seeburg promised to replace the money of the Respondent. But Seeburg. never did. In the spring of 1969 the crisis became worse. Other Seeburg divisions began requesting the Respondent for money to pay the other divisions' bills. Finally in May 1969 the top management at Seeburg asked Respondent to postpone paying any suppliers for 30 days. Thus it was that in the spring of 1969, at or about the time that the, contract between the parties was about to expire and negotiations for a, new contract were about to commence, The Respondent was financially in difficulty.4 According to Raoul, , he informed the negotiating committee representing the Union of these matters at the various meetings that were held prior to the strike. According to Fletcher, the union president, there were approximately 10,such meetings. It is apparent that the reason that the, Respondent and the Union could not come to agreement on a-new contract was that the Respondent on the one handwas, having a difficult time financially and the employees represented by the Union on the other hand were having a difficult time by reason of the fact that 1969 was an inflation year. As outlined above, the Respondent, as in prior years, posted a notice on May 1 stating that the vacation for the employees would take place the first 2 full weeks of August that year. However, the strike which began on July 21 was an intervening event which changed the course of the plans for the vacation. By letter to the Union dated July 28, 1969, Respondent President John True notified Union Repre- sentative William Smith to,the effect that because of intervening events over which the Respondent had no control it was necessary for the Respondent to reschedule the vacations to a later date. The letter stated that the Union would be notified when the Respondent came to a decision on a new vacation schedule. At the next bargaining session of the parties which took place probably on July31,1969, the matter of the vacations was discussed. Toward the end of that bargaining session William Smith, the union representative, asked the Respondent to pay the vacation pay. Counsel for the Respondent, in the absence of Raoul, stated that the letter spoke for itself and that no vacation could be rescheduled until after the strike, Then Smithasked about vacation pay. Hutcheson, counsel for the Respondent, replied that that would have to be decided later on. The next bargaining session was held on August 5, 1969. Smith, the usual union representative, was absent and in his place was D'Ambrosio, another International representa- tive. D'Ambrosio stated that Respondent had an obligation to pay the employees for their vacation and Hutcheson 4 All of the foregoing from the credited , uncontroverted testimony of Raoul, the chairman of the Respondent's board of directors. 5 From the -credited testimony of True and Henry as supported by a stipulation received as to what Hutcheson would have testified to had he testified. Although Smith, Fletcher, and Brewer testified that Hutcheson stated that the Company would not underwrite the strike in paying denied that this was so. D'Ambrosio then insisted that the Company had a legal duty to give the employees their vacation pay and in response Hutcheson stated "The Company is not legally obligated to subsidize the strike." 5 In the meantime, as a result of the July 31 refusal to pay vacation pay, the employees who were on strike held a meeting on August 2. At that meeting Fletcher, as president of the Union, told the employees of the refusal of the Company to pay vacation pay. According to-Fletcher, this aroused a great deal of anger among the employees present and many of them stated their desire to take the Respondent to court over the matter. In connection with the foregoing, it should be noted that at no time during any of the bargaining sessions where vacation pay was discussed did any representative of the Respondent state that the Respondent was unable to or could not financially afford to pay the vacation pay. On about August 11, 1969, Fletcher and -9 or 10 other employees visited the Respondent's premises to ask for their vacation pay. They spoke to Personnel Manager Henry and to President True. Fletcher asked True if the latter was,going to pay the vacation pay. True answered that he thought the letter, he had sent explained the whole matter. When Fletcher pressed the matter-further and said that the Company was then not'going to pay the vacation pay True answered, "No, we are not going to pay the vacation pay until the strike is over." 6 - Thus matters stood, the strike continuing and other occurrences taking place as the strike wore-on. However, on October 30, 1969, True sent a letter to the employees enclosing their vacation pay. In this letter,-True told each employee that though the Respondent ,had -hoped to schedule vacations during- the warm season this was now impossible and that the time of the year had arrived when most of the employees would find it difficult or impossible to actually take a vacation. For this reason the Respondent had decided to pay all employees the vacation-pay. Each person had a check enclosed with the letter. -At the hearing herein Raoul sought to explain the 'reason why the vacation pay was not paid at the time in August when the vacations of the employees would normally have occurred had it not been for the strike.-He explained, in substance, that there were -two problems. The first was the Respondent always had strong feelings that -vacations should be taken whenever possible but that they had no knowledge at the time of when .the strike might end, that it was, the wish of the Respondent to have, a vacation period if possible when the strike did end. Secondly, he -explained that he had the further problem of Seeburg's cash situation. He went on to explain the seriousness of that situation as outlined heretofore. Raoul said that for that reason he consulted his counsel who gave him legal-advice but left the decision up to him. He said a decision was made because he tried to do as nearly as possible what would have been required under the most recently expired contract. Raoul further stated that with respect to the scheduling of vacation pay, I find that the recollection of the Respondent's witnesses was more accurate in this respect and that Hutcheson made his statement to the effect that the Company was under no legal obligation to subsidize the strike only at the August 5 meeting. 6 From the credited testimony of Fletcher which went undenied in the testimony of Henry and True. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vacations the contract contains the requirement that the Respondent is- to pay each employee when the employee takes his vacation and that the vacation pay does not accrue until the vacation, is taken, In this manner, Raoul sought evidently to explain that the reason the vacation pay was not paid was that the taking of vacations was impossible and that therefore vacation pay did not accrue, 2.. Concluding findings, with, regard to the vacation pay issue The General Counsel and the Union contend that the vacation pay, was not given as scheduled as a reprisal against the striking employees and that the payment was deferred in order to force the employees to abandon the strike, and to return to.work. They argue that this is clearly discriminatory and, therefore, in violation of the Act. The Respondent would seem to be contending that therewas no discriminatory -motivation on its part; that-the deferral of the payments, of vacation pay was prompted solely on the basis of legal consideration; namely,, that the Respondent' was faced with a financial crisis and the vacation pay was not due and payable until the vacations were taken and that this became impossible- because of the intervening strike. Moreover, : the Respondent also infers that no employees were given vacation pay;" strikers as well as the nonstrikers were not paid, and therefore the strikers .were not being treated in a discriminatory manner. With regard to the Respondent's contention that the vacation -pay was due and payable only when vacations- were taken; and not, until then, an examination of the recently expired bargaining agreement reveals that vacation pay is due, and payable when vacations are taken, "or on the first, pay period in July if no vacation is taken that year." I conclude that under the quoted provision, since no vacation was taken vacation pay automatically became due, and payable. But regardless of the contract provisions for the payment of vacation pay, if the failure to"pay was- based not on the technical application of the cited contract clause but because of, discriminatory reasons, the technical defense is of'no avail., Therefore, the various statements of Respon- dent's officialsand representatives must be considered. In.evaluating the testimony in the most favorable light to' the Respondent; there is no question that Re'spondent's counsel and, representative told the union representative at- the August 5,bargaining meeting that the Respondent was under no legal obligation to finance the strike by payment of, vacation pay.7 -Additionally, Respondent's' President True told a group of employees on December I 1 that the payment of vacation pay would not be made until the strike was over, thereby, making payment of - vacation pay contingent-on the employees ending the strike. I note also that at the beginning of the two bargaining sessions, July 31 and August 5, at which the matter,of vacation pay was discussed, the Respondent's representatives did not in any 7 There-would seem to be no discernible difference in the impact of the statement as given by various General Counsel witnesses to the effect that Hutcheson said the-Respondent would not pay the vacation pay and help finance the strike or whether he said, as Respondent's witnesses testified, that the Respondent was under no legal obligation to help finance the strike. 8 See Frick Company, 161 NLRB 1089, 1108. ' way claim that the Respondent was unable -to meet" the financial burden. Finally, the' Respondent's- ultimate payment - on October 30, 1969, of the ' vacation, pay would seem to indicate the Respondent did, indeed; believe the payment had accrued and, was payable although the Respondent did not assign' this as the reason for finally making the payment., - I therefore conclude from the record as it pertains to the vacation pay problem that the refusal to pay the vacation pay was discriminatorily motivated. In so-concluding Irely especially on the statement of President `True in which the payment of vacation pay was conditioned on- cessation of the strike8 and the statement of Respondent's representa- tive to the effect that 'Respondent was under no legal obligation to help finance-the strike. I have considered the fact that the. payment was-ultimately made in October 1969 months before the strike ended.' However, this "does not modify or eliminate the original, motivation but rather indicates a tardy recognition of Respondent's' legal obligation. I have also been cognizant of and have weighed the significance of the Great Dane Trailer cases and the fact- that the Respondent here did not pay vacation pay to any employees even those who evidently did-not join the-strike. However, I find the present situation-somewhatanalogous to those, in which the Board has found"that employers discriminatorily discharged nonunion junior employees in order to reach for discharge senior union supporting employees.- In those cases the Board has held that the mere fact that the nonunion employees were discharged did not lessen the discriminatory motivation.10 In thetinstant case the mere fact that the working-employees were not paid did' not,lessen the discriminatory motivation: - Accordingly, I - find and,- conclude that ! Respondent's, refusal to pay the accrued vacation pay at the ' time originally scheduled was capable of discouraging member- ship in the Union and was `therefore violative of `Section 8(a)(3)-and (1) of the Act. ' D. Development After September 1961 The strike, as noted above, continued until February 7, 1970, when Fletcher, the ,union president, notified the Respondent by letter that the strike was °,terminated and- requested reinstatement on behalf of all striking employees. Between the time of the Respondent's refusal to pay vacation pay and the end of the strike, a number of events occurred which affected the relationship between the Respondent, the Union and the striking employees. 1. The `September 23 incident and its aftermath During the weeks' before September 23, 1969, employees George Carlton Smith,' Leonard A. Ford,,Wayne Barger,, and Orville H. Tate, all union members who had supported` the strike, returned to work at the Respondent's plant. They, formed a car pool for the purpose of transportation to and 9 N .L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26. 10 Cf. Wonder State Manufacturing Company v. N.LR.B,'331 F.2d 737, 738 (C.A.6); Majestic Molded Products, Inc. v.7l.LRB., 330 F.2d 603, 606 (C.A.2); Willard's Shop-Rite Caskois, Inc., 132 NLRB 1146, 1149; Englewood Lumber Co, 130 NLRB 394, 395. CAVALIER DIV. OF SEEBURG CORP. from work. On the afternoon of September 23, as they were leaving the plant in Smith's car with Smith driving, they were followed in a car driven by Union President Fletcher with picketing employees Vernon Brewer, a member of the Union's bargaining committee, and Edward Snyder. The Fletcher car followed the Smith car through various streets and avenues of Chattanooga until the Smith car stopped in front of a church opposite the home of employee Barger. Smith pulled into the driveway of the church parking lot and stopped. Fletcher was blocking traffic, so he too pulled into the parking lot and turned his car around to face the Smith 'car approximately 30 to 40 feet away. In following the Smith car, the occupants of the Fletcher car made no threatening gestures, no horn was blown, no attempt was made to interfere with the Smith car's operation, and the Fletcher car came no closer than about 30 feet to the Smith car. After Fletcher stopped the car in the church parking lot, Fletcher, Snyder, and Brewer sat watching the other car for perhaps a half minute when the doors of the other car flew open and the' occupants,went to the front seat. According to Fletcher, he could see one of the occupants in the front seat was ill. Fletcher started his car and drove off. As it turned out, George Smith, the driver of the other car, had had a heart attack and died. Two days later, by letter, the Respondent notified Fletcher, Brewer, and Snyder that they were suspended pending investigation for misconduct. Thereafter, at a bargaining session between the parties held on November 12, 1969, the first such session since August 5, the Union's International representative, William Smith, inquired of Respondent's representative if the Union accepted the Respondent's proposed contract which had been offered for the first time at that session would all the striking employees be put back to work. Respondent's counsel, Hutcheson, answered in the negative explaining that there were not enough jobs for everyone. Then Smith asked Hutcheson about how many jobs were open. Hutcheson answered that there were probably less than 100 jobs open. There is a conflict with regard to what occurred next. According to General Counsel's witnesses Fletcher and William Smith, Smith asked William Awoul, chairman of the-board of the Respondent, with regard to the suspension of Fletcher, Brewer, and Synder whether if the Union accepted the contract which the Respondent offered would Respondent lift the suspension. Raoul, according to Smith and Fletcher, replied "No, he would not take them back under any circumstances." According to the version of Respondent's witness Hal Clements, an attorney in Respondent counsel's office who was present at that bargaining session, nothing of this nature was said. Supporting this testimony is the testimony of Raoul who seemed'to have clear recollection of what occurred at that meeting and who very specifically stated that after Hutcheson stated that he believed there were probably less than 100 jobs left open, Smith stated "Well, things will have to go on for a long time. Quitters never win and winners 31 Unreported. 12 The cited case was Allied Industrial Workers, Local 289, Case l0-CB-1851. On May 12, 1970, the Associate Executive Secretary of the Board issued an order by direction of the Board in which the Board 299 never quit." According to Raoul, this was the last thing said at the meeting and the meeting broke up. Raoul and Clements specifically stated that during that meeting there was no- discussion whatsoever by anybody concerning any individual strikers and their status. Specifically, there was no mention of the names of-Fletcher, Snyder, or Brewer. I accept and credit the version of the'meeting as given by Raoul and Clements. Clements, an attorney, gave a short, concise, and straightforward version of what occurred. Raoul impressed me as- having had a vivid recollection of what occurred at that meeting. On the other hand, although Smith was also quite positive of what happened,' he admitted with regard to another meeting that he did; not take full notes of what occurred, and I find that his recollection was not as reliable as that of Clements and Raoul. With regard to Fletcher's testimony, for reasons hereinafter stated, I do not find him to be a, completely reliable witness and I therefore do not credit his version, of what, occurred at the meeting of November 12, 1969. By reason of the foregoing, I do not find that Raoul or any other person connected with Respondent's management stated that they would never under any circumstances reinstate Fletcher, Snyder, and Brewer. This being so, I will dismiss that portion of the General Counsel's, complaint which alleges this statement to have been a violation. By letter dated -February 10, 1970, the Respondent was advised by Fletcher that the Union made an unconditional request to return to work on behalf of all the striking employees. On April 14, 1970, the Respondent, by letter, notified Fletcher that the latter was discharged based,on the finding of the Trial Examiner in Case 10-CB-1851 It concerning Fletcher's activities on the picket line October 13 and 21, 1969. As heretofore noted, on, those dates Fletcher engaged in the taking of pictures, of employees entering and leaving the plant. These employees were either new hires or employees who were unwilling to join the strike or who had abandoned the same. The Trial Examiner, in that decision, found that this picture taking by Fletcher constituted coercion in violation of Section 8(b)(1)(A) of the Act'2 By letter of August 10, 1970, Respondent notified Brewer and Snyder that they were discharged. The reason for the discharge cited in those letters was merely that Snyder and Brewer had been guilty of misconduct during the strike. 2. The November 3, 1969, incidents On November 3, 1969, more than the usual number of pickets appeared on the picket line. Indeed, a number of the striking= employees who had been assigned picket duty at other hours appeared at the Respondent's plant in the early postdawn hours. The record does not establish that this was by design or whether it was merely coincidence. In any event, by the time employees began to report to work and had to pass through the' picket line conditions had deteriorated to the point of near riot. Stones were hurled at cars entering the plant and fire bombs were also thrown. Pickets made threatening gestures to those entering the adopted completely the findings and conclusions of the Trial Examiner contained in his Decision. As noted above, since no exceptions were filed to a Trial Examinees Decision, this case was unreported and not printed in the Board's official decisions. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant and invectives and obscenities were hurled at the employees who went to work,that morning. Among-, the picketing employees whom Respondent alleges were engaged on that occasion in misconduct were Lora Creek and Barbara Tarpley. On that morning Tarpley and Creek, on the picket line, shouted obscenities such as "slut," "whore," "bitch," and "scab" at various people entering the plant. Also on one occasion during that morning either Tarpley or Creek threw down a picket sign at or near a passing car which was also entering the plant. In, addition, in one instance, in the case of Mrs. Kathryn Tate, Tarpley yelled out to the occupants of the car in which ^ Tate was riding that , they would "get me." In addition, on another occasion as observed by employee Carolyn, Brooks, Tarpley and Creek would join hands on the sidewalk and prevent those who were coming by to enter the plant from entering the plant on the sidwalk and forcing them into the road. Also employee Willie Gothard statedthat as she passed by to go into the plant Tarpley `and Creek "would sling their feet and arms out." 13, Tarpley and Creek both continued to strike and picket until the strike was terminated by union letter to the Respondent.• After the strike terminated, both Creek and Tarpley mailed to the Respondent letters requesting reinstatement and expressing their desire unconditionally to return to work. The Respondent has failed to respond to those letters and has failed and refused to offer either Creek or Tarpley their former jobs or any other position with the Respondent. Finally, on` September 2, 1970, the Respon- dent, in separate letters, informed Tarpley and Creek that they were'discharged for misconduct during the strike. The letters explained that the delay in deciding on their status was due to the fact that investigation of their cases was,still continuing, but in view of the upcoming proceeding (the instant case) their status -had- to be clarified. In connection therewith Respondent's 'chairman of the board, Raoul, testified that Tarpley and Creek were discharged for foul and abusive language on many , occasions and for interfering with the ingress and egress of working employees. Also involved in an incident on November 3 at the picket line site was employee Otis Green. On that morning, Green threw a rock at and struck a car driven and owned by David E. Barber, an employee who worked through the strike and crossed the picket line. Although Barber admitted on cross-examination that he did not see the rock leave Green's hand, he did see the rock in Green's hand, he saw, Green's arm come back, and immediately he felt and saw the rock hit the side of his car. What happened was that he heard something hit the side of his car after he had seen Green make the motion with his hand with.the rock in it. Immediately after this happened Barber stopped his car and got out and Green started to run away. Although Green denied that he ever threw a rock, and employee is All of the foregoing with regard to Tarpley and Creek from the credited testimony of Respondent's witnesses Carlisle, Lindsey, Swafford, Hart, Cox, Brooks, Gothard; Tate, and Castleberry. I credit the Respondent's witnesses in this re's'pect' over the denials of Creek and Tarpley' and General Counsel's witness Stafford. Creek and Tarpley each testified that although they' were on the picket line on November 3 and admitted that rocks and -fine bombs were thrown and that other disturbances occurred, nevertheless, they were unable or unwilling to tell Stafford testified that he was °in Green's presence all that morning and did not see Greeil' throw a rock, I credit the testimony of witness Barber. Again, in the case of both Green and Stafford, neither of these men saw anything that was going on during the morning of November 3. It should be noted in connection therewith that introduced in the evidence was a motion picture taken by the Respondent of that morning's activities which clearly depicted the, rock throwing and the burning fire bombs but from which the hurlers of the bombs and the`rocks could not be identified. Again, it is puzzling and indeed- `strange 'that 'these individuals who were on the picket line, who participated in the picketing that morning, did not see anything that occurred. Accordingly, I do not credit the testimony of Green and Stafford but do credit the testimony of Barber., I find and conclude that Green did throw the rock that morning which did indeed strike Barber's automobile. On February 17, 1970, Green received from the Respondent a dismissal slip stating that he was discharged for misconduct in the course of an economic strike. James Holsomback, a picketing striker, engaged in a similar incident on the morning of November 3. According to Respondent's witness James C. Lindsey on that morning he 'saw Holsomback hit an automobile with a rock. Although Holsomback denied this incident, for the reasons I have failed to credit the other General Counsel witnesses with regard to the other events of November 3 I discredit Holsomback's denial and credit Lindsay's testimony, Accordingly, I find and conclude that Holsomback did, indeed, throw a rock at a psssing car on that morning. On February 16, 1970, Holsomback visited the Respon- dent's plant to request reinstatement upon cessation of the strike and was interviewed by Personnel Manager Henry. Henry handed him a slip which was the formal notification to Holsomback stating that Holsomback was discharged for misconduct during the course of an economic strike. Respondent's Chairman Raoul testified that Holsomback was discharged for striking the car of a nonstriker with a brick or a rock. In the afternoon of November 3, employee Bill Nunley appeared at the home in Whitwell, Tennessee, of Josephine Barnett and in the presence of witnesses Billie Ray Barnett, Josephine Barnett, and Carolyn Barnett stated that "If Billy Thompson crosses the picket line, I intend to kill him in the morning." Nunley also stated that Billy Thompson had taken his job at the Respondent's plant. In explanation, it should be noted that Billy Thompson was a working employee at Cavalier and the brother of Carolyn Barnett, and uncle of Ray Barnett. Josephine Barnett is Ray's wife. Nunley admitted his presence at the time and place alleged by these witnesses but claimed that he made no threat on the life of Billy Thompson. He testified that'all that he stated to the Barnetts was that he wanted to see Billy who participated in the rock throwing and the fire bomb hurling . This was true of all of the General Counsel's witnesses who testified as to the occurrences of the morning of November 3. However, it is reasonable to believe that these witnesses either out of fear of hurting their fellow employees or out of fear of testifying against themselves denied any knowledge as to who participated in the riotious portion of the sequences of November 3. Accordingly, I do not credit their other testimony regarding the November 3 incidents. CAVALIER DIV. OF SEEBURG CORP. 301 Thompson in order to ask the latter not to cross the picket line. From my observation of the, witnesses and in view of what occurred generally on November 3, I find and conclude that the Barnetts' version of what occurred that afternoon at the Barnetts' home is, the more reliable one and therefore find that Nunley did make the threat as alleged. After the strike was over Nunley received a letter from the Respondent to come down to the plant to check on his job. He saw Jack Henry, Respondent's personnel manager, who gave him a discharge slip. This was on February 12, 1970. The discharge slip stated, in effect, that Nunley was discharged for misconduct during the course of an economic strike. 3. The Rollins involvement in the "boycott" As set forth earlier in this Decision, the Respondent is engaged in the manufacture of a single product; namely vending machines which are purchased by the various Coca-Cola bottling companies throughout the United States. Among these companies is the Coca-Cola Bottling Company located in Chattanooga„ Striking employee Leonard Rollins was involved in what Respondent alleges constituted a secondary boycott against Coca-Cola Bottling Company of Chattanooga in support of the strike against the Respondent being conducted by the Union. Toward the end of October 1969, the Respondent began to hire permanent replacements for the employees who were on strike. About the same time, Rollins, who had been at onetime president of the Union and was considered by many of the members to be a leader among them and who was also a picket captain at the time, became involved with a Reverend H. H. Wright, a civil rights leader among the poor and blacks in Chattanooga. Although Rollins denied that he waq the one who - set up a meeting held around October 5 or 6 at the union hall at which the Reverend Wright spoke, it is clear that he met the Reverend Wright just prior to that meeting and in this meeting with the Reverend Wright the meeting for the 5th or 6th was planned. The Reverend Wright spoke at the close of the regular meeting of the Union held at the Labor Temple in Chattanooga on that day and expressed his surprise that the Respondent would replace the striking employees. He inferred that this was part of a conspiracy against the poor people and the laboring classes among the industrial community in Chattanooga. Then the, Reverend Wright and Rollins jointly announced the formation of a coalition of the poor and laborers "to help the 300 people who had been dismissed by the Cavalier Division of Seeburg." The announcement of this coalition was made at a press and television conference held at the Labor Temple on November 18, 1969, when both Rollins and Wright gave statements for the press. In Rollins' statement, although he did not specifically mention the term boycott, he did state that the Respondent made coolers for Coca-Cola and that this was the only product the Respondent made. He further stated that the Coca-Cola industry was Respondent's only 34, From the newspaper clipping of the Chattanooga Times of November 19, 1969, which was verified by the reporter, a Mrs. Robison, who wrote the article. Rollins admitted in testifying that the article was accurate in its buyer. Wright, however, made a more direct statement. He asked that the public buy no more Coca-Cola.14 - Thereafter, several marches were organized by the Reverend Wright in which strikers and others marched through the streets of Chattanooga carrying signs, some of which asked the public not to buy Coca-Cola., Rollins, although he did not, march at the head of these marches, participated and admitted in his testimony that he walked up and down the march line obviously for the purpose of encouraging the marchers and helping to organize the march. One such march,, in which Rollins testified that he did not participate, went to the Coca-Cola ' Bottling Company plant and interfered with the ingress and egress of trucks and other vehicles to and from the plant. At about the same time, a handbill was distributed from the union hall, which handbill could not be directly attributed to any of the leadership of the Union but which found its way-into the streets of Chattanooga, urging, the public to support the strikers by not buying Coca-Cola. It should be noted that in connection with all of this activity, the International president of the Respondent's national union specifically ordered the officers of the Union not to participate in any boycott activity. Indeed the record shows that-none of them did.15 The record does not establish by a preponderance of the testimony that the Union itself was directly involved in the poor peoples' coalition or the so-called boycott. However, the record does not show that any - of the vending machines manufactured by the Respondent after the strike began were used by the Chattanooga Coca-Cola Bottling Company. On February 13, 1970, following termination of the strike, Rollins made application for reinstatement. He was discharged by letter of that date in which it was explained that he was discharged for leading and participating in, the boycott against the Coca-Cola Company. Additionally, Board Chairman Raoul testified that Rollins was dis- charged for that reason. 4. The refusal to bargain Between August 5 and November 12, 1969, there was a hiatus of bargaining. Whether this was caused by the Union's neglect to press bargaining or whether it was because of the Respondent's failure to respond-is a matter in dispute. According to Fletcher, the union-president, he contacted an agent of , the Federal Mediation and Conciliation Service approximately - 10 times asking the latter to communicate with the Respondent and tell the Respondent the Union desired a meeting for purposes of bargaining. The mediator answered that he did communi- cate with the Respondent but that the Respondent failed to come to a meeting -until November 12. On the other-hand. Hutcheson, counsel for the Respondent,, testified that he' was in contact with the conciliator on several occasions during this period and asked the, conciliator whether the Union requested to call a meeting and the conciliator answered "No." Because there is no unfair labor practice charged against the Respondent growing out of this reporting of what occurred at the press conference. rs From the testimony of Rollins and employee Dorothy Treadway. 302` DECISIONS OF NATIONAL LABOR RELATIONS BOARD particular failure to, meet. I find that it is unnecessary, to resolve this conflict of testimony. In any event, 'I find that at least at sometime during that period of time Fletcher =made verbal requests to the conciliator to meet with the Respondent . On December 2, 1969, Fletcher wrote to the Respondent and requested further bargaining. The Respondent answered that request with a "letter dated December 4, 1969 ,•from -Hutcheson to Fletcher, in which, Hutcheson informed Fletcher, "please be advised that we must at this time defer your request for further bargaining pending disposition by the National Labor Relations Board of the petition which has been filed, apparently - raising a' question concerning representation. When this matter has been resolved, we shall act accordingly." The record contains reference to the petition mentioned , in the Respondent's letter to the Union. It is apparent that this petition was a petition for decertification filed by; some dissident members of the Union and some employees probably who were not members . Insofar as the record shows, this petition was suspended pending the outcome `of the instant proceeding. As heretofore set forth, on February 7, 1970, Fletcher notified Respondent that ,the 'strike was 'terminated and requested reinstatement on behalf of all striking employees. On the same day,'February 7, 1970, Fletcher, as president of the Union, addressed a letter to Raoul , chairman of the Respondent's board ' of directors, requesting certain infor- mation. This letter requested a list of employees who were presently -filling production and nonproduction jobs for the Respondent and, among other things, a list of all job openings as of February 7, 1970, together with the department which these openings were in and the rate of pay. By letter dated February , 10, 1970, Hutcheson, Respondent's counsel, answering the Union's letters of February 7, stated, in effect, that the Respondent Would have to have more information"from the Union with regard to striking employees who wished to return to work. With respect to the request for information , Hutcheson stated that "We can perceive no legal duty to grant your request at this time." Hutcheson reminded Fletcher that the petition for an election" was pending before the Board which apparently raised a valid question concerning representa- tion. He then stated that if the Union could establish to the Respondent's, satisfaction the right to such information he would be- glad to reconsider -the Company's position and whatever legal obligation there was toward the Union. Thus it was that from November 12, 1969 , there was no further bargaining between the parties. Thereafter, by letter dated February 18, 1970, the Respondent notified the employees who had been on strike that in order to become eligible to return to work each employee would have to come in, in person, or notify the Respondentby letter. Thereafter some employees, complying with the Respon- dent's request for a personal visit or a letter request to return to work, were reinstated. However, there is a contention that their jobs were not the same or equal to the jobs they had prior to the 'strike. ' In connection with the Respondent 's refusal to bargain further ,after December 1969, Respondent's Board ;Chair- man Raoul testified that around December 1, 1969, he received a copy of a petition for'decertification 'from the Board. Shortly thereafter he received a letter from Fletcher concerning the request for meeting. Following"this, Hutcheson wrote the letter above 'referred to in, which he told the Union that the Respondent would not further bargain pending the ojutcome 'of the representation petition and stated that a question concerning representation existed. Raoul stated that he had been informed by his counsel that the Board had a ground rule that a petition is ordinarily accepted only when 30 percent or more of the employees have signed it. Moreover , Raoul also knew that 357 people were crossing the picket line. He also knew that there were 307 or thereabouts striking employees, some of whom had gone to work in other places.' He knew this because a few had asked to get a quitting report from the Respondent. Many of the others had never been seen on the picket line. Furthermore, Respondent had meetings almost daily with the employees who were working and he heard the sentiment of these people on many occasions. Moreover, his counsel advised him that he thought there existed a question concerning, representation .,He relied on all of those factors in deciding not, to bargain further,with the Union. E. Concluding Findings 1. The discharge of the nine employees The first alleged strike misconduct on which the Respondent bases discharges was that which occurred on September 23, 1969, 1 involving employees, Fred, Fletcher, Vernon Brewer, and Edward' Snyder. As set forth in detail, above, this incident involved the following by these three individuals of the car driven by George Carlton Smith at the culmination of Which Smith died . The Respondent contends that the car following incident was a proximate cause of, Smith's death and that, 'therefore, its action in discharging Brewer and Snyder was proper in, the circumstances. As to Fletcher, Respondent contends that if the latter had not been discharged by reason of the picture taking incidents of October he would have been discharged for his participation in the car following incident of September 23. The General Counsel contends that the ,discharge of these three employees,, two of whom were leaders in the strike movement, was pretextual and that, the car-following incident was used as an excuse for the Respondent's ridding itself of three militant- union adherents. The Union makes still another contention. It argues that the car ' following incident was a legitimate one because the purpose thereof was to find the location of the homes of the occupants of the Smith car so that they could_ be later` contacted for the purpose of trying to induce _them,"lawfully, not to cross, the picket line. - It would seem that the two issues here presented regardless of the question of whether the discharges of these three was pretextual, are, first, whether the employees involved were engaged in protected` activity and, secondly, if'not, whether the incident was of sufficient seriousness to warrant their discharge. This is so because even assuming that the Respondent had a good-faith ]belief that 'these three were -responsible for the death of Smith, a good-faith but "CAVALIER DIV. OF SEEBURG CORP. mistaken belief is no defense to a discharge of employees who are otherwise engaged in protected activity and who were not, in fact, guilty of the conduct for which they were assumed guilty.16 It is therefore necessary to determine, first, whether, these employees were engaged in protected activity. It is clear from the record, as recited heretofore, that in following the George Carlton Smith car Fletcher and his two associates made no'thteatening gestures, no horn was blown, no attempt was made to run the Smith car off the road,, there -was - no tailgating, and a safe distance was maintained between- the cars, The Respondent offered evidence to show that Smith had been followed home a week before by'three other union adherents and that he had arrived at home on the earlier occasion in a state of fear and excitement. This was -related through his son who testified that Athe father was agitated 'when he came in and that, instead of driving his car to the usual parking space, drove behind the house and literally hid the automobile. However, there, is no record showing that either Fletcher, Brewer, or Snyder had any knowledge of the earlier event. Thus, without more, the following of the Smith car by Fletcher could be assumed, -to have been for the purpose testified to by, Fletcher; namely, that he desired to locate the hone addresses of the riders of the Smith car in order to contact them at a,later date to, attempt to induce them' not to report to work and not to cross the picket line. However, there is- one factor which must still be considered. The men is the Smith car were all members of the Union and, moreover,, Fletcher admitted that he had their names and addresses _ from the city directory. He explained, ' rather weakly, I find, that he just wanted to see where they lived so he could locate them' later. I find this not to be credible. I find 'that Fletcher knew where these individuals lived and could easily have found them had he so desired. Accordingly, I find and conclude that the purpose of following the -Smith car was for the purpose of harassment to induce and to coerce the riders of the Smith-car not to report to work. However,' in making this finding I do not in any way attribute to Fletcher and his associates the cause of Smith's death." The testimony was such that the only expert witness who could do' so, the coroner, 'explained at the hearing that death could have occurred equally either from fright from the car following or from other causes. I therefore must determine whether the conduct of Snyder and Brewer with Fletcher was sufficiently serious to warrant-their discharge. - The Board, in the remanded Kohler case,17 held that, in balancing an employer's unfair labor practices against strike misconduct of the employees in that case, employees who actively engaged in halting, encircling, blocking, shouldering, and bumping of nonstrikers or job applicants during the -mass picketing or employment office picketing or verbally harassing, insulting, and abusing nonstrikers at the picket line and at their homes and business establish- ment or places of amusement were not engaged'in such serious conduct as warranted -their discharges as compared '16 See N.L.R.B. v. Burnup and Sinu, Inc, 379 U.S. 21. 17 Kohler Co., 148 NLRB 1434. The remand was by the court of appeals, 300 F.2d 699 (C.A.D.C.). 303 to the unfair labor practices in which the employer in that instance engaged. In the present case, the Respondent's only preceding unfair labor practice, as found above, was the withholding of the vacation pay. That this was a serious unfair labor practice can readily be found from the fact that the-strikers were in need of the vacation pay, had earned it, and the vacation pay had accrued and was due and owing to the strikers. The failure to'"pay the vacation pay had an adverse effect, therefore, not only on the outcome of the strike and the morale of the strikers, but against the very pocketbooks of the strikers themselves'. Under all of these circumstances, and in balance, according to the theory of the court in the Kohler case, above cited, and in N.L.RB. v. Thayer Co., et al., 213 F.2d 748 (C.A, 1), cert. denied 348 U.S. 883, I conclude that tl•e conduct of' Snyder, Brewer, and Fletcher in following the Smith car was not so egregious as to warrant denying to them reinstatement to their former or equivalent positions. I find, therefore, that the discharge of Snyder and Brewer was in violation of Section 8(a)(3) of the Act. However, the' case of Fletcher presents further problems. As testified to by the Respondent's witnesses, Fletcher would have been discharged for the car-following incident but, prior to the decision to discharge Brewer and Snyder, Fletcher was 'discharged for engaging in the activity for which the Union was found to have violated the Act in Case 10-CB-185118 As previously noted, Fletcher's participation in the activity which constituted the unfaair labor practices in that case was the taking of the pictures, of persons entering and leaving the plant. I find and conclude that Fletcher's activity, by reason of the findings in the prior case, constituted unlawful activity and, therefore, a form of misconduct in relation to the Respondent's rights and to the rights of the employees who entered and left the plant at that time. Coercion of this nature cannot be presumed to be innocent and protected by the Act. However, I do not conclude that this type of misconduct is necessarily the type of misconduct which warrants discharge or refusal to reinstate. In thus finding this I note the Respondent's preceding unfair labor practice in refusing to pay vacation pay. I note also that although I did not find the Respondent's use of cameras on the picket line to be violative of the Act, there is ample evidence and I find that the Respondent's supervisors and officers did, indeed, carry cameras openly in and about the picket line area. I therefore find and conclude that the use of cameras by Fletcher to take pictures of strikebreakers entering and leaving the plant is not so egregious in nature as to warrant his disch'arge.19 Accordingly, I find that the discharge of Fletcher was in violation of Section g(ax3)' and (1) of the Act. , The cases of Lora Creek and Barbara Tarpley must be accorded the same disposition as those of Brewer, Snyder, and Fletcher. Tarpley and Creek were certainly guilty of misconduct on the picket line, which cannot be condoned. However, their misconduct consisted of screaming and yelling the words "scab" and other obscenities. There was 18 Allied Industrial Workers, Local 289, unreported. 19 See Local 833, UAW (Kohler Co.) v. N.L.R.B. 300 F.2d 699 (C.A.D.C.). 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some testimony, which I credit, to the effect that at least at one time they put their arms together to prevent a person or persons entering the plant from walking on the sidewalk. The Board has recently held 20 that ."Section Ts protection of employees who participate in picket lines during legitimate lawful strikes would beeunduly=jeopardized if any misconduct on the picket line, .without regard for the seriousness of such conduct, were automatically to constitute'grounds-for refusal to reinstate strikers. Mean- ingful protection in this case must require that the relatively 4iminor and isolated aforesaid incidents .are misconduct, a great many 'of which cannot be imputed directly and personally to the alleged discriminatees, do not remove the Act's protection from the perpetrators, or suffice to legitimatizea failure,to reinstate them." In the cited case,, the employees engaged in conduct on the' picket line which consisted of obscene statements and name calling, threats of personal injury, and presence in a group in which property damage occurred. I find that the conduct of Tarpley and Creek was of a lesser nature than that found in the cited case. The Board in that case found the refusal to reinstate the. employees so engaged to be violative of the -Act. Accordingly, following precedent, I -find`that the 'discharges of Creek and `Tarpley, were also violative of Section $(a)(3) and (1) of the Act. I come -to a- different result in the cases of James Holsomback and Otis Green. In both instances I have found that each of these individuals hurled rocks at cars entering the plant which rock hurling resulted in property damage. These ' were acts directly attributable to both Holsomback and Green. Under the' circumstances, I have no alternative but to_ find that their acts constituted violence' of such a serious -nature as to justify-, the Respondent's refusal to reinstate them , and the Respon- dent's action in discharging them. Accordingly, I shall dismiss those portions of the complaint which allege that the Respondent violated Section 8(a)(3) and (1) of the-,Act in the discharge of Green and Holsomback. I come to a like conclusion in the case of Bill Nunley. Nunley threatened the life of Billy Thompson because the latter took his place in the Respondent's plant while Nunley was striking. This was not a threat made on the,picket line in the midst of turmoil such as` occurred on November, 3, 1969. This was not the exhuberance- of a picketer yelling at strikebreakers crossing the picket line in the middle of, a ,disturbance`at the picketing site. This I was a deliberate attempt away from the picket line at' the home, of the intended victim's sister to intimidate, coerce, and perhaps do more than just threaten. Accordingly, I shall dismiss that portion of the complaint which alleges that Bill Nunley was discriminatorily discharged. As heretofore set `forth more fully, Leonard Rollins was deeply involved in the boycott of the Coca-Cola Company which was endorsed and sponsored by the poor peoples' coalition. As noted,` Rollins spoke at the meetings at the Labor Temple in which the Union had its offices, and meeting rooms and at' which the Reverend Wright participated in organizing the coalition. Moreover, Rollins 20 Hartmann Luggage Company, 183 NLRB No. 128. 21 The Respondent does not contend that the information sought by the Union in its letter of February 7 was not relevant. There is no contention admittedly, participated in the marches which were sponsored by :the- coalition. Thus there, is evidence that Rollins participated in and sponsored' the coalition which, in turn,3sponsored the boycott. As noted, no one from, the Union could identify the writer or publisher of the handbill which asked the public of Chattanooga and the area not to purchase Coca-Cola. However, from the news conference in which Rollins participated and from the -marches in which he took an active part and helped,direct-and in which the marchers. carried placards ,asking the public not to buy Coca-Cola, it is concluded that Rollins,, did, indeed, participate as a leader in the plan to boycott Coca-Cola products because Coca-Cola purchased machines manufac- tured by the Respondent against whom the Union was striking. While this boycott might not have been technically a boycott within the -meaning of Section 8(b)(4K)(ii)(A) and (B) of the Act, I nevertheless find that it was a boycott which took umbrage with a customer or customers of the Respondent in an attempt to cause the public not to buy the product of the customer in order to force the customer to cease "doing business with the Respondent. This certainly was not a boycott of the product of the primary employer, the Respondent in, this case,`-but was a' boycott of the product of the secondary employer. Accordingly, I find `and conclude that Rollins actively' participated and engaged in a leadership role in conduct which extended the strike against. his employer beyond the domain `of his immediate employer to person or persons doing business with his employer. While this, technically, might not have been an unfair labor practice in and of itself, it nevertheless constituted such conduct as would be inexcusable on the part of any employee who participates in such secondary activity. Therefore, I find and,conclude that the Respon- dent's discharge of Rollins was for, cause. Accordingly, I shall dismiss that portion of the complaint which alleges that the discharge ,of Rollins was in violation of Section 8(a)(3) and (1) of the Act. In summation, I find, and conclude that the suspension and discharges of Fred Fletcher,. Vernon Brewer, and Edward Snyder , were discriminatory and violative, of Section 8(a)(3) and (1) of the Act. I additionally.find that the discharges of ,Barbara Tarpley and Lora Creek were discriminatory and therefore violative of, Section 8(aX3) and (1)` of the Act. However, I do noty find that the discharges of Otis Green, James Holsomback, Bill Nunley, and Leonard Rollins ' were violative of Section 8(ax3) and (1) of the Act and I shall order dismissed those portions of the complaint which allege that their discharges were violative of the Act. 2. As to the refusal to bargain The Respondent defends. its refusal to bargain on and after December 4, 1969, and its refusal to give the Union information, on February 10, 1970, 21 on the ground, primarily, that -there was a petition for decertification pending which petition raised a question concerning representation. Also, the Respondent contends that more people were working in the plant than were on .strike and, by the Respondent that it was not legally obligated to give this information insofar as the content of the information is concerned. CAVALIER DIV. OF SEEBURG CORP. 305 further, that Raoul, the Respondent's board chairman, had heard overwhelming sentiment among the , employees working to the effect that they no longer desired to be represented by the Union. The Board has held that in situations such as the one presented here, where the withdrawal of recognition occurs after the expiration of the certification year, the Union is to be afforded the benefit of a presumption of continuing majority status, but that such a presumption may be rebutted by the showing that the employer entertained a good-faith doubt which was based on objective considerations.22 It therefore becomes neces- sary to evaluate the merits of the so-called objective considerations which the Respondent offers as the basis for its claim of a good-faith doubt as to the Union's majority. The courts have held that, where the doubt is based on a decertification petition, the naked fact that such a petition has been filed would not appear to be enough since nothing else appearing it indicates merely that the petition is supported by the requisite 30 percent "showing of interest." 23 However, there are the other factors on which the Respondent relies, . Raoul cited the fact that he knew that 357 people were crossing the picket line and that there were 307 or thereabouts striking employees, some of whom had gone to work in other places. However, the Board has clearly stated that the mere failure of employees to support a strike called by their bargaining representative does not give rise to a presumption that these employees have repudiated the Union as their bargaining representatives.24 Moreover, employees who joined the strike at the outset but later abandoned it are also not presumed to have indicated their lack of support for, the Union as their bargaining representatives.25 ' There is still to be considered Raoul's statement that, he heard the sentiment of the people who were ' working who desired not to be represented by the Union any longer. But here again the Respondent does not in'any of its proffered testimony offer any figures as to, the numbers or identity of the individuals who expressed this sentiment. In contrast to these so-called objective considerations which the Respondent cites there are the outstanding unfair labor practices in which the Respondent engaged prior to its refusal to further bargain with the Union. As of the date of December 4, the first date of its refusal to bargain, the Respondent had unlawfully refused to pay the vacation pay in July as it had accrued to the striking employees and all other employees. I have heretofore found this to have been a violation of Section 8(a)(3) and (1) of the Act. Furthermore, I have heretofore found that the suspension of Fletcher, Snyder, and Brewer to have been a violation of Section 8(a)(3) and (1) of the Act. Thus, if, indeed, there was a loss of majority in union membership as of the, time of the refusal to bargain, such loss was due, at least in part, to the Respondent's own unfair labor practices. Hence, I find that the Respondent cannot justify its action on the basis of a good-faithful doubt as to the 'Union's majority status and, therefore, the Respondent's withdrawal of its recognition of the Union as the majority representative 22 Wabana, Inc., 146 NLRB 1162, 1171; Laystrom Manufacturing Co. 151 NLRB 1842. 22 Wabana Inc., 146 NLRB 1162, 1171; Massey-Ferguson, Inc., 184 NLRB No. 69. of the employees as a bargaining unit was a violation of Section 8(aX5) and (1) of the Act. Moreover, even assuming, arguendo, that the Respondent did, indeed, have a good faith doubt as' 'to the Union's majority as of the time that it refused to, bargain, by its own figures the Respondent cannot support a' finding that the Union no longer' represented a majority of its employees. As stated above the mere failure of employees to support a strike called by their -bargaining representative "does not give rise to the presumption that these employees have repudiated the Union as their bargaining representative. Moreover employees who have abandoned the strike are not presumed to have indicated their lack of support for the Union. Therefore, the figures of 357 employees working and only. 307 striking would not support as an objective test a finding that the Union had, in fact,' lost its majority. Moreover, the Respondent also cites the fact that some employees who were striking abandoned the strike to" take other employment elsewhere. This additional factor, however; does not bolster the Respondent's argument that the'Union no longer is a majority, representative of the Respondent's employees. Strikers who abandon- the strike for the purpose of seeking employment elsewhere cannot be said to have abandoned their desire to work for the Respondent as members of the bargaining unit., The, most that can be said for these employees is that they were forced for economic reasons to seek employment- elsewhere in order to support themselves and their families. Therefore, I conclude that the Respondent has failed to establish, .by objective considerations that; the Union was no longer a majority representative of the bargaining unit employees at the time that the Respondent refused to bargain. In connection with the foregoing, I find that the Union has been, since March 5, 1962, and now is, the representa- tive of a -majority of employees of the Respondent in the following unit which I find to be appropriate for the purposes of bargaining within the meaning of the Act: All production and maintenance ` employees at the Respondent's Chattanooga, Tennessee plant, including group leaders, but excluding office clerical, plant clerical employees, watchmen, guards, laboratory technicians, engineers, draftsmen, research development employees, professional employees, assistant foremen, working fore- men, and all other supervisors as defined in the Act. Accordingly, I find that by refusing to bargain with the Union on and after December 4, 1969, and by' refusing to give the Union relevant information on February 12, 1970, the Respondent unlawfully refused-to bargain in good faith with the Union in violation of Section 8(a)(5) and (1) of the Act. 3. The nature of the strike The question presented is whether the illegal activity of the Respondent, found above, "served to aggrevate and prolong the strike." 26 The Board has held that contributing to the prolongation of the strike by the commission of 24 Coca-Cola Bottling Works, Inc., 186 NLRB No. 142; Palmer Asbestos & Rubber Corp., 160 NLRB 723. 25 Frick Co, 175 NLRB No. 39. 26 Erie Resistor Corporation, 132 NLRB 621 at 632. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices has the legal effect of converting an economic strike into an unfair labor practice strike.27 I find and conclude that the action of the Respondent in unlawfully refusing to pay vacation pay on or about July 29 served to, aggrevate and prolong the strike. I have heretofore recited how the employees-who were on strike reacted 'at the union membership meeting to the announce- ment by Fletcher that the Respondent was not going to pay the accrued vacation pay. Thus this action by the Respondent necessarily resulted in a change of the, attitude of striking employees from employees merely seeking economic gains to one, of the employees seeking redress for unfair labor practices against them. Moreover,, even if the refusal to pay vacation pay did not convert the strike and serve to prolong and aggrevate the situation, then certainly the suspension of the three union adherents, Fletcher, the president of the Union, Brewer, a member of the bargaining committee, and Snyder, had that effect. Finally, even if these' 'two occurrences' were not sufficient in and of themselves to convert the strike, then surely Respondent's refusal to bargain in December was the ultimate in serving to aggrevate'the situation. -Accordingly, I find and conclude that the strike was converted from an economic strike to an unfair labor practice strike on July 29, 1969. The Respondent argues that at no `time did the picket signs change from the economic type to, signs in which the pickets were complaining of unfair labor practices of the Respondent. The Respondent contends, therefore, the outward signs would indicate that the nature of the strike continued to be economic despite the other circumstance. I could find no precedent in which the Board or the courts have held that the mere failure to change the picket signs from economic picket signs to'unfair labor practice picket signs- would prevent a finding that a strike had been converted from an economic to an unfair labor practice strike. 4. The Respondent's reinstatement obligations Inasmuch as it has been found heretofore that the strike was converted into an unfair labor practice strike on or about July 28 or 29, 1969, which was at a time when no „replacements had as yet been hired by the Respondent, the Respondent was therefore under an obligation at the end of the strike to reinstate all of the unfair labor practice strikers who made unconditional application to return to work. On February 7, 1970, the Union, on behalf of all striking employees, made such unconditional application by letter from the Union signed by the, Union's president, Fletcher, to the Respondent. Thus, the Respondent's reinstatement obligation accrued on February 7, 1970, or at the latest the date on which the letter from the Union to the Respondent was received by the Respondent. On February 10, 1970, Respondent, through its counsel, Hutcheson, answered-Fletcher's letter of February 7. In his letter, Hutcheson stated that, while the Respondent acknowledged the statement of the Union that it had terminated its strike, Respondent felt that the statement 27 Kohler Co., 128 NLRB 1062 at 1084 28 See Coca-Cola Bottling Works, Inc., 186 NLRB No. 142. 29 Coca-Cola Bottling Works, Inc., supra. See also Rybolt Heater Co., 173 that "all strikers are available and willing to return to work immediately and unconditionally," raised some questions which needed resolution before the Respondent could assess its responsibilities in - the matter. Specifically, Hutcheson stated that Respondent"had information' that some of the employees previously on strike had secured permanent' employment elsewhere; - that some of the persons - had moved out of the area and were thus: not available; and that others for various° reasons did not desire to return to ,work. Therefore, according to Hutcheson, the Respondent needed more information. The letter from Hutcheson to Fletcher went on to "request that -you immediately supply us with an accurate list of the names and addresses of all previous strikers; who have not made application individually or who desire to preserve their rights the Cavalier Corporation. If we do not receive,such a list within a reasonable time, we will assume that, none other than those who have made- individual application desire to preserve such rights as they may have:at Cavalier." The Board has recently held that the obligation to reinstate is on the, Respondent, and the Union is under no obligation to furnish the Respondent a list of availability, of returning strikers.28 ` Finally, as late as March 2, 1970, almost an entire month after the request for reinstatement was made by Fletcher on behalf of the striking employees, Hutchesonwrote Fletcher, in answer to a letter`from Fletcher dated February, 27„ 1970, repeating the request to return to work, that the Respon dent'had accumulated substantial evidence that contrary to the Union's ' assertion many previously striking employees have no further interest in being employed by Cavalier. The letter then went on to say that "your unconditional offer to return to work on behalf of the striking employees is quite 'obviously too broad and inaccurate 'to be "relied upon." '-Thus, it is apparent that as `late as March 2, 1970, the Respondent had not completely complied with the Union's request, for unconditional reinstatement of the striking employees. Accordingly, I find that the Respondent's reinstatement obligations accrued on February 7, 1970, and that its failure to reemploy all of ' the strikers before March 2 was an unreasonable delay in their reinstatement and under the circumstances presented here such conduct was violative of Section 8(a)(3) and (1) of the Act 29 In these circumstances, therefore, it will be left-to later compliance proceedings of the Board to resolve the issue of which employees were denied- timely and full reinstatement and what; if any, backpay might be owing to particular employees.30 ' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent found to constitute unfair labor practices, as set forth in section III, above, occurring in connection with its operations described in section, I, above, have a close, intimate, and substantial relation; to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. NLRB No. 89, and cases cited therein. sa Cf. Florence Printing Co., 158 NLRB 775. CAVALIER DIV. OF SEEBURG CORP. 307 THE REMEDY Having found that Respondent engaged in and is engaging in certain unfair labor practices it shall be recommended that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. It having been found that the Respondent has discrimina- torily deferred the payment of vacation pay when due to its employees, I shall recommend that the Respondent cease and desist ' therefrom. However, because the said vacation pay has since been paid to the employees, the necessity to order payment has been obviated. It having been found that the Respondent has discrimina- torily discharged Fred Fletcher, Vernon Brewer, Edward Snyder, Barbara Tarpley, and Lora Creek, I shall recommend that Respondent offer the said employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. In addition, I shall recommend that Respondent make these employees whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to each of a sum of money'equal -to that which each would normally have earned from February 7, 1970, the date on which the Union made unconditional offer to return to work after the strike, less net earnings during said period. Backpay shall be computed - with interest on a quarterly basis in the manner described by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-295, and Isis Plumbing & Heating Co., 138 NLRB 716. It having been found that the economic strike which began on July 21, 1969, was converted, on July 29, 1969, into an unfair labor practice strike, employees who were on strike at that time thus became unfair labor practice strikers and were, in consequence thereof, entitled to reinstatement upon application made for them by the Union-on February 7, 1970, irrespective of 'whether their positions were thereafter filled by replacements hired by the Respondent. It therefore will be recommended, in order to effectuate the 'policies of the Act, that the Respondent offer these employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, I am aware of and have considered the evidence submitted -by the Respondent that a number of these employees have already been reinstated to some position in the Respondent's plant. However, on the present state of the record I cannot ascertain whether the reinstatement has been to „ their former or substantially equivalent positions. It is therefore fitting that the determination of these matters be left to a supplemental, backpay proceeding. I shall recommend that the Respondent make whole employees who were on strike up to February 7, 1970, for any loss they may have suffered by reason of Respondent's refusal, if, any, to reinstate them, by payment to each- of them of a sum of money equal to that which he normally would have earned as wages, such sum to be computed from February 12, 1970, 5 days after the unconditional offer to return to work was made by the Union, together with interest thereon at the rate of 6 percent per annum. Computation of backpay shall be made in the manner set forth in F. W. 'Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138- NLRB 716. Having found that Respondent has unlawfully refused to bargain with the Union in good faith and has thereby violated Section 8(a)(5) of the Act, I shall recommend that the Respondent cease and desist from refusing ' to so bargain and shall further recommend that the Respondent bargain, upon request, with the Union and, if `an understanding is reached, embody such understanding in a signed agreement. Having found that Respondent has unlawfully refused to bargain in refusing the information requested by the Union in its letter of February 7, 1970, 1 shall recommend that the Respondent cease and desist therefrom and shall further recommend that the Respondent furnish to the Union such information as is necessary and that is requested in such letter. - CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, 2. The Union is a labor organization -within the meaning of Section 2(5) of the Act. 3. By deferring the payment of vacation pay of its employees because they were on a strike, a protected concerted .union activity, Respondent has engaged in discrimination in regard to terms and conditions of employment of its employees within the meaning of Section 8(a)(3) of the Act. 4. By discriminatorily suspending employees Fred Fletcher, Vernon Brewer, and, Edward Snyder and by discriminatorily discharging employees Fred. Fletcher, Vernon Brewer, Edward Snyder, Barbara Tarpley, and Lora Creek, because they engaged in protected concerted union activity, Respondent has violated Section 8(a)(3) and (1) of the Act. 5. All production and maintenance employees at the Respondent's Chattanooga, Tennessee, plant, including group leaders, but excluding office clerical, plant clerical employees, watchmen, guards, laboratory technicians, engineers, draftsmen, research development employees, professional employees, assistant foremen, working fore- men, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times since on or about March 5, 1962, the Union has been, and' is, the representative of a majority of employees in the unit described above, for the purposes of collective bargaining and, -by virtue of Section 9(a) of .the Act, has been and is the exclusive representative of all the employees in said unit for the purposes- of collective bargaining. 7. By refusing on or about December 4, 1969, and thereafter, to bargain collectively with the, aforesaid labor organization, the Respondent has engaged in and -is engaging in unfair labor practices within'the meaning of Section 8(a)(5), and (1) of the Act. 8. By refusing on or about February 10, 1970, and at all times thereafter to furnish to the Union relevant informa- tion requested by the Union, the Respondent has engaged 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in and is engaging in unfair labor practices, within the meaning of Section 8(a)(5) and (1) of the Act. 9. By failing to act promptly on the Union's request for reinstatement of striking employees, thereby causing an unreasonable delay. in the reinstatement of said employees, the Respondent has violated Section 8(a)(5), (3), and (1) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 31 ORDER Respondent, Cavalier Division of Seeburg Corporation and Cavalier Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to pay accrued vacation pay when due because -its employees are engaged in a strike or other concerted or union activities. (b) Discouraging membership in Allied Industrial Workers, AFL-CIO, Local Union No. 289, or any other labor organization, by suspending or discharging any employees for engaging in a strike or other protected union or concerted activity or by discriminating against employ- ees in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (c) Refusing to bargain collectively with or furnish relevant information to Allied Industrial Workers, AFL-CIO, Local Union No. 289, as the exclusive representative of its employees in the following appropriate unit: All production and maintenance employees at the Respondent's Chattanooga, Tennessee, plant, including group leaders, but excluding office clerical, plant clerical ' employees, watchmen, guards, laboratory technicians, engineers, draftsmen, research develop- ment employees, professional employees , assistant foremen, working foremen, and all other supervisors as defined in the Act. (d) Delaying for an unreasonable length of time the reinstatement of employee-strikers on whose behalf the Union has made unconditional application for reinstate- ment. (e) In any other manner interfering with , restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist Allied Industrial Workers, AFL-CIO, Local Union No. 289, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing , and to engage in other concerted activities for the purposes of collective bargain- ing or other mutual aid or protection, or to refrain from any and all such activities. 3i In tha event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section I02A8 i of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Fred Fletcher, Vernon Brewer, Edward Snyder, Barbara D. Tarpley, and Lora Creek immediate and full reinstatement to their former job's or, if those jobs no longer exist, to' substantially equivalent positions, without prejudice to their seniority or other rights ' and privileges, and make them whole for any loss of earnings they may have suffered as 'a result of the discrimination practiced against them 'in the manner set forth in the section of this decision entitled "The Remedy," (b) Offer reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights` and privileges, to all employees who were on strike on and after July 21, 1969, on whose behalf the Union has unconditionally requested, reinstatement, dis- missing, if necessary, any persons hired after that date and make each such employee' whole for any loss of earnings he may have suffered, in the manner set forth in the section hereof entitled "The Remedy." (c) Notify, any of its employees in the, above two categories if presently serving in the'Armed Forces of the United States of his right to full reinstatement in accordance with the Selective Service 'Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed forces. (d) Upon request, bargain _ collectively with, , Allied Industrial Workers, AFL-CIO,, Local Union No. 289, as the exclusive bargaining representative of the Respondent's employees in the unit 'found appropriate with-respect, to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (e) Preserve and, upon request, make available to, the Board or its ,agents, for examination and copying, all payroll records, social security payment records and reports, and' all other reports necessary to analyze the amount of backpay due under, this Order. (f) Post at its plant in Chattanooga, Tennessee, copies of the attached notice marked "Appendix."32 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous, places, includ- ing all places ' where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices ' are not altered, defaced, or covered by any other material. No other material relative to this matter shall be posted, during this period. (g) Notify -the Regional Director for Region 10, do writing, within 20 days from receipt of this Decision, what steps the Respondent has taken to comply herewith 33 IT Is{FURTH R ORDERED that the complaint herein shall be dismissed with respect to any unfair labor practices which 32 In the event that the Board's Order is enforced by a Judgment of a United, States Court of Appeals, the words in the notice reading "Posted by Order oft the National Labor, Relations Board" shall be changed to read "Posted Pursuant to a Judgment ,of the United States Court of, Appeals Enforcing an Order of the National Labor Relations Board." 33 In the event that this recommended 'Order is adopted by the Board CAVALIER DIV. OF SEEBURG CORP. 309 are alleged and have not been found to have been violations. after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."