Bil-Mar Foods, Inc.

786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bil-Mar Foods, Inc. and Local 406, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. Cases 7- CA-18467, 7-CA-18757, 7-CA-19157, 7-CA- 19502, 7-CA-19510, and 7-CA-19730 4 November 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 30 September 1982 Administrative Law Judge Huebert E. Lott issued the attached deci- sion. The Respondent and the Charging Party filed exceptions and supporting briefs. The Respondent also filed a brief in response to the Charging Party's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, t and conclusions only to the extent consistent with this Decision and Order and to adopt the recommended Order as modified.2 The judge concluded, and we agree, that the Re- spondent violated Section 8(a)(1) of the Act by in- terrogating employee Patsy Geil concerning her union activities, 3 creating the impression that her union activities were under surveillance, and threatening her with loss of employment if she sup- ported or assisted the Union. We also agree with the judge's conclusion that the Respondent pos- sessed a good-faith reasonable doubt based on ob- jective evidence of the Union's continued majority status and therefore did not violate Section 8(a)(5) by withdrawing recognition from the Union and thereafter instituting unilateral changes in terms and conditions of employment. For the reasons set forth below, we disagree with the judge's conclu- sion that the Respondent violated Section 8(a)(1) ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We have modified the judge's notice to conform with the recom- mended Order s In agreeing with the judge that the interrogation was unlawful, we note that under all the circumstances the Respondent's questioning tended to restrain , coerce, and interfere with rights guaranteed by the Act See Rossmore House, 269 NLRB 1176 (1984) The judge also dis- missed an allegation of unlawful interrogation concerning Chief Steward Goerbig Applying the Rossmore House standard, we agree with this dis- missal. by deferring vacation benefits to striking employ- ees. The Respondent was engaged in the processing, manufacture, and distribution of poultry products. The Union was certified as the bargaining repre- sentative of the Respondent's production employ- ees and semi-truckdrivers approximately 15 years ago. The parties had a series of collective-bargain- ing agreements, the last of which expired on 31 January 1981.4 With respect to vacation pay this agreement provided: The vacation year shall be July 1 to June 30 following. Vacation will be payable the first week of July for the previous year . .. . All full-time employees covered by this agreement who are on the employers payroll as of July 1, of each year and have worked the hours specified below during the vacation year shall be entitled to vacation pay in accordance with the following schedule: 1600 hours-full vacation 1200 hours-3/4 vacation 900 hours-1/2 vacation 500 hours-1/4 vacation All hours worked shall count toward accu- mulation of vacation eligibility requirements. Disagreement during negotiations for a successor agreement caused unit employees to commence an economic strike on 1 February.5 The parties con- tinued to negotiate for a new contract until some- time in April. During May and June, two to four bargaining unit employees submitted 45 petitions to the Respondent's personnel department. The peti- tions indicated that a majority of employees no longer wished to be represented by the Union. As found by the judge, the Respondent lawfully with- drew recognition from the Union based on the Union's loss of majority evidenced by the employ- ee petitions. After the strike commenced in the early spring of 1981, employee Ruth Bartels telephoned the Re- spondent's personnel director, Michael Lupton, and requested her vacation pay. Lupton informed her that, according to the contract, vacation pay was not payable until 1 July. Bartels phoned Lupton about 22 June and again requested vacation pay. Lupton informed her that he thought she had quit her employment. According to Bartels, Lupton re- ferred to a company letter sent Bartels stating that if she failed to return to work by a certain date she would be permanently replaced. Bartels denied 4 All dates refer to 1981 unless otherwise indicated. s The parties stipulated at the hearing that neither the Union nor any strikers had yet made an unconditional offer to return to work 286 NLRB No. 84 BIL-MAR FOODS 787 quitting. Lupton told Bartels he would check on her employment status and consult with company counsel regarding her entitlement to vacation pay. Lupton testified that company policy deferred va- cation payments to employees on leave until they returned to work and he was concerned about whether striking employees were legally entitled to different treatment. On 3 July Lupton telephoned Bartels, acknowledged that she had not quit, and informed her of company policy deferring vacation pay until she returned to work. On 26 June the Respondent refused to pay all striking employees vacation benefits. It paid such benefits to employees who crossed the picket line and went to work. The Respondent's president, Gary DeWitt, explained the Respondent's vacation policy. He testified without contradiction and con- sistent with Lupton's statement regarding company policy discussed above, that vacation pay was based on the number of hours worked the preced- ing year and was payable in July to employees ac- tively working at such time. 1 f an employee was not "actively at work" in July when vacation checks were issued the employee would not re- ceive vacation pay until the employee returned to "active work." If an employee never returned to "active work"no vacation was payable. DeWitt testified that this policy had remained unchanged since the Union was certified. The judge found that the Respondent's withhold- ing of vacation pay for strikers violated Section 8(a)(1) of the Act. Citing Vesuvius Crucible Co., 252 NLRB 1279 (1980), enf. denied 668 F.2d 162 (3d Cir. 1981), the judge found "that the only reason the striking employees were denied their accrued vacation benefits was because they were on strike and not on the Respondent's payroll as of 1 July 1981." The judge noted the absence of evidence es- tablishing an intent to discriminate because of strike activity. He concluded that the Respondent's non- discriminatory withholding of vacation benefits from strikers, which resulted as a consequence of strike activity and the Respondent's literal contract interpretation, unlawfully penalized strikers for en- gaging in protected activity by treating strike par- ticipation as a form of unexcused absence. We dis- agree. In Texaco, Inc., 285 NLRB 241 (1987), we re- cently set forth governing principles f'or determin- ing when an employer's suspension of benefits for disabled employees on commencement of a strike violated the Act. We held that the question of whether an employer violates Section 8(a)(3) or (1) by refusing to continue benefit payments to a dis- abled employee on commencement of a strike will be resolved by application of the Great Dane test for alleged unlawful conduct.6 In this regard, we stated: Under this test, the General Counsel bears the prima facie burden of proving at least some adverse effect of the benefit denial on employee rights. The General Counsel can meet this burden by showing that (1) the bene- fit was accrued and (2) the benefit was with- held on the apparent basis of a strike . .. . Once the General Counsel makes a prima facie showing of at least some adverse effect on employee rights the burden under Great Dane then shifts to the employer to come for- ward with proof of a legitimate and substantial business justification for its cessation of bene- fits. The employer may meet this burden by proving that a collective-bargaining represent- ative has clearly and unmistakably waived its employees' statutory right to be free of such discrimination or coercion. . . . If the employ- er does not seek to prove waiver, it may still contest the disabled employees' continued enti- tlement to benefits by demonstrating reliance on a nondiscriminatory contract interpretation that is "reasonable and . . . arguably correct" [footnote omitted], and thus sufficient to con- stitute a legitimate and substantial business jus- tification for its conduct. Moreover, as under Great Dane, even if the employer proves busi- ness justification, the Board may nevertheless find that the employer has committed an unfair labor practice if the conduct is demonstrated to be "inherently destructive" of important employee rights or motivated by antiunion intent.' NLRB Y Great Dane Trailers, 388 U S 26 (1967), cited in Texaco, supra, fn. 12 The Court in Great Dane addressed the lawfulness of an employer's denial of vacation benefits to strikers and articulated the fol- lowing test for alleged unlawful motivation First, if it can reasonably be concluded that the employer 's discrimi- natory conduct was "inherently destructive" of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evi- dence that the conduct was motivated by business considerations Second, if the adverse effect of the discriminatory conduct on em- ployee rights is "comparatively slight," an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct Thus, in either situation , once it has been proved that the employer engaged in discriminatory conduct that could have ad- versely affected employee rights to some extent, the burden is on the employer to establish that it was motivated by legitimate objectives since proof of motivation is most accessible to him 388 US at 34 7 Texaco, Inc, supra at 245-246 See also Amoco Oil Co, 285 NLRB 918 (1987), where the Board applied the principles articulated in Texaco to find the suspension of benefits to disabled employees during a strike was not unlawful 788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The principles articulated in Great Dane and Texaco are applicable to the vacation pay issue pre- sented here. Indeed, as previously indicated, Great Dane itself dealt with the withholding from strikers of accrued vacation pay. Applying those principles, we find that the General Counsel has proven a prima facie 8(a)(1) case concerning the Respond- ent's deferral of vacation pay to strikers." The General Counsel has met the prima facie burden of proving that the benefits here were due and payable and therefore accrued on the date the Respondent withheld payment of them based on the vacation pay provision in the collective-bar- gaining agreement.9 This provision, as set forth above, indicates that vacation benefits for full-time covered employees on the Respondent's payroll as of 1 July were "payable" based on past perform- ance with no further work required for continuing receipt. The contractual language does not express- ly require actual presence at work on 1 July in order to receive vacation pay. Furthermore, the contractual reference to "on the employer's pay- roll" must be construed in light of the retention of statutory employee status by economic strikers.10 Therefore, under a reasonable and arguably correct contract interpretation, the striking employees re- mained on the Respondent's payroll as of 1 July and were entitled to payment at that time. We con- clude on this basis that the General Counsel has met the prima facie burden of proving that vaca- tion pay for strikers was accrued. In addition, it is undisputed that the Respondent withheld vacation benefits for strikers while paying such benefits to employees who crossed the picket line and re- turned to work. Such withholding of accrued vaca- tion pay on the apparent basis of protected strike activity warrants the inference of unlawful dis- criminatory conduct. Consequently, the burden shifts to the Respondent to prove a legitimate and substantial business justification. The Respondent contests the strikers' entitlement to vacation benefits by relying on a contractual in- terpretation and past practice, which has resulted in deferral of vacation benefits to any employee absent from work on 1 July for whatever reason whether or not related to the exercise of protected strike activity. The Respondent's credited testimo- ny reveals that consistent practice under the con- tract has required that employees be "actively working" on 1 July to receive vacation pay. Em- 8 There are no exceptions to the judge's dismissal of the 8(a)(3) allega- tion 9 Texaco, 285 NLRB 241, 246 fn 22 io NLRB v Fleetwood Trailer Co, 389 US 375, 381 (1967), Laidlaw Corp, 171 NLRB 1366, 1368-1369 (1968), enfd 414 F 2d 99, 103 (7th Cir 1969), cert denied 397 U S 920 (1970) ployees absent on 1 July for any reason receive va- cation benefits only when they return to work. We find, in agreement with Texaco's principles and the Third Circuit's analysis in Vesuvius Cruci- ble II that the Respondent has proven reliance12 on a nondiscriminatory, reasonable, and arguably cor- rect interpretation of the vacation pay provision sufficient to constitute a legitimate and substantial business justification for its deferral of vacation pay to strikers. The Respondent's contractual interpre- tation is nondiscriminatory because its treatment of employees absent from work due to statutorily pro- tected strike activity is no different from its treat- ment of employees absent for reasons unrelated to protected activity. On the contrary, it is supported by testimony of a longstanding past practice of uni- formly deferring vacation pay for any employee not actively working for any reason, on the date when vacation checks were issued. There is no evi- dence that this practice has not been consistently applied. In particular, there is no evidence that any nonstriking employee, or employee who abandoned the strike but was absent from work on 1 July for reasons other than the strike, still received vacation pay on such date rather than the date such employ- ee actually returned to work. The Respondent's contractual interpretation is reasonable and argu- ably correct because the vacation pay provision re- quiring that employees "be on the employer's pay- roll as of July 1" is on its face amenable to the in- terpretation relied on and consistently applied in a nondiscriminatory manner. In these circumstances, we find that the Respondent has proven a legiti- mate and substantial business justification for its de- ferral of vacation benefits to strikers. Prior Board and judicial decisions in Frick, Duncan Foundry, and Knuth Bros., do not require a different result here.13 As explained below, none of these cases involved proof of an employer's reli- ance on a nondiscriminatory interpretation of rele- vant benefit plans to deny vacation pay to strikers. Instead, the allegedly contract-based practices of each employer in those cases involved: the outright forfeiture, rather than deferral, of strikers' vacation 11 Vesuvius Crucible Co v NLRB, 668 F 2d 162 (3d Cir 1981). In Texaco, we expressed our agreement with the Third Circuit's analysis in Vesuvius Crucible that demonstrated reliance on a nondiscriminatory con- tract interpretation that is "reasonable and arguably correct" is suffi- cient to constitute a legitimate and substantial business justification for discontinuance of contractual benefits 285 NLRB at 246 fn 24 12 The judge has effectively found, by reference to the "Respondent's non-discriminating action as a consequence of its employees' engage- ment in such activity and Respondent's literal reading of the contract," that the Respondent actually relied on the interpretation argued before us As previously noted, there are no exceptions to this finding 18 Frick Co., 161 NLRB 1089 (1966), enfd in relevant part 397 F 2d 956 (3d Cir 1968), Duncan Foundry & Machine, 176 NLRB 263 (1969), enfd 435 F2d 612 (7th Cir 1970), Knuth Bros, Inc, 229 NLRB 1024 (1977), enfd 584 F 2d 813 (7th Cir 1978) BIL-MAR FOODS 789 pay; inconsistent and discriminatory application of the alleged benefit entitlement rule; and an inter- pretation that effectively treated striker status as the equivalent of nonemployee status, a clearly dis- criminatory practice. In Frick, for example, the vacation plan provided that no vacation was payable to any person not on the payroll on the Wednesday preceding the week during which vacation pay was distributed. The re- spondent removed from its payroll the names of striking employees on the basis of an undefined uni- lateral "unauthorized absence" rule, thereby treat- ing strikers as having voluntarily quit. The re- spondent was apparently free to authorize absences for any purpose deemed desirable. The only evi- dent category of unauthorized absences involved striking employees. In these circumstances, the em- ployer's refusal to pay vacation benefits to strikers absent from work when such benefits were paid to other employees was discriminatory on its face. The burden is placed on the employer to establish that it was motivated by legitimate business objec- tives. Frick adduced no evidence demonstrating how its "unauthorized absence" rule had been ap- plied to all employees. Here, by contrast, the Re- spondent established that no benefits were immedi- ately payable to any employee, striking or nonstrik- ing, if absent from work on the critical date under its consistently applied contractual interpretation. Likewise, in both Duncan Foundry and Knuth Bros., the alleged "active work" rule, cited by the employer in each case as a business justification for its denial of vacation benefits to strikers, was not consistently applied, treated strikers the same as nonemployees, and was discriminatory on its face and in its application.14 Here, by contrast, the Re- '4 In Duncan Foundry, contrary to the employer's argument, the ex- pired contract required only retention of employee status and not active work on a specified date for payment of vacation benefits. Strikers were employees on the qualifying date The respondent applied the terms of the expired contract and past practice to grant vacation benefits to non- strikers and former strikers who crossed the picket line Even assuming the existence of an "active work" rule, strikers were apparently the only employees deprived of vacation pay by its application This rule was then itself discriminatory Absent proof of a legitimate and substantial business justification, the purported active work rule was unlawful In Knuth Bros, employees were allegedly required to be on the "active payroll" on 1 March to be entitled to any vacation benefits for the previ- ous 12 months All employees who struck during the previous year were lawfully replaced by 1 March Employees on approved leave on 1 March were eligible for vacation benefits earned during the previous year when they returned to work The respondent did not pay 'vacation benefits to employees discharged or otherwise terminated before the 1 March "ac- crual date " Relying on its decision in Duncan Foundry, the Seventh Cir- cuit concluded that the employer could not validly discriminate against strikers by applying its vacation policy only to employees on the active payroll on 1 March in circumstances where it chose to lawfully replace strikers before 1 March, noting that "any distinction among employees based solely on presence at work during a strike ignores the fact that under the National Labor Relations Act a striking employee even if re- placed, retains employee status until he obtains other regular and substan- tially equivalent employment or affirmatively renounces such status " 584 spondent demonstrated consistent application of and reliance on a reasonable and arguably correct contractual interpretation deferring vacation bene- fits to any employee absent from work on the speci- fied date. There are no authorized or approved leave exceptions, and striker status is not equated with nonemployee status concerning the receipt of benefits. This contract-based practice is therefore not itself discriminatory and is sufficient under Great Dane to constitute a legitimate and substan- tial business justification. Proceeding with the Great Dane analysis, not- withstanding the Respondent's proof of a legitimate and substantial business justification, we may still find that it has committed an unfair labor practice if its conduct can reasonably be found to be "inher- ently destructive" of important employee rights. We conclude that the Respondent's conduct was not "inherently destructive" of important employee rights. In this regard, consistent with Amoco, supra at 921, we find that the deferral of vacation pay to strikers was not "inherently destructive," i.e., "con- duct with far reaching effects which would hinder future bargaining or . . . discriminated solely upon the basis of participation in strikes or union activi- ty," Portland Willamette Co. v. NLRB, 534 F.2d 1331, 1334 (9th Cir. 1976), or that it created "visi- ble and continuing obstacles to the future exercise of employee rights." Inter-Collegiate Press v. NLRB, 486 F.2d 837, 845 (8th Cir. 1973).15 There is no evidence in the record indicating that the Re- spondent's conduct created continuing obstacles to the exercise of employee rights or impeded the col- lective-bargaining process. In addition, deferral of vacation pay in no way implicated a denial of the statutory employee status of strikers. Furthermore, the Respondent lawfully withdrew from bargaining and withdrew recognition from the Union based on objective evidence which supported its reasonable good-faith doubt of the Union's continued majority status. This withdrawal of recognition occurred ap= proximately 2 weeks prior to the Respondent's de- ferral of vacation pay. Consequently, we fail to see how the Respondent's reliance on its nondiscrim- inatory, reasonable, and arguably correct contrac- tual interpretation of its vacation pay provision can be construed as hindering bargaining when the bar- gaining relationship had been lawfully discontin- ued. F 2d at 816 (citations omitted) Member Johansen agrees that Knuth Bros, is distinguishable and therefore finds it unnecessary to consider the validity of the analysis in that case 15 Accord NLRB v Borden, Inc, 600 F 2d 313, 321 (1979), Vesuvius Crucible Co v NLRB, 668 F 2d 162, 169 (3d Cir 1981), and NLRB Y. Sherwin-Williams Co, 714 F2d 1095, 1101 (11th Or 1983), cited in Texaco, Inc, 285 NLRB at 245 fn 19 790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Based on the foregoing , we conclude that the Respondent did not violate Section 8(a)(1) of the Act by deferring vacation benefits to strikers until they returned to work. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Bil-Mar Foods, Inc., Zeeland, Michigan, its officers, agents, successors , and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 2(a) and reletter the subse- quent paragraphs. 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT create the impression that an em- ployee's union activities are under surveillance. WE WILL NOT interrogate you concerning your union sympathies. WE WILL NOT threaten you with loss of employ- ment if you support or assist the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. BIL-MAR FOODS, INC. Dwight R. Kirksey, Esq., for the General Counsel. Jack B. Combs and Robert J. Chovanec, Esgs (Warner, Norcross and Judd), of Grand Rapids, Michigan, for the Respondent. A. Robert Kleiner and Michael L. Fayette, Esqs. (Kleiner and DeYoung), of Grand Rapids, Michigan, for the Charging Party. C. Douglas Lovett, Esq. (Whitney and Schulz), of Cleve- land, Ohio, for Patsy Geil and Debra Goerbig. DECISION STATEMENT OF THE CASE HEBERT E. LOTT, Administrative Law Judge. These consolidated cases were heard at Holland, Michigan, on October 27 and 28, 1981. The charge in Case 7-CA- 18467 was filed on November 4, 1980.1 By Local 406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Charging Party or the Union). Complaint issued on that charge on December 30. The charge in Case 7-CA-18757 was filed by the Union on January 14, 1981. A consolidated com- plaint issued on these charges on February 18, 1981. The charge in Case 7-CA-19157 was filed by the Union on April 6, 1981, and the consolidated complaint issued on these charges on May 21, 1981. The charge in Cases 7- CA-19502 and 7-CA-19510 were filed by the Union July 1 and 6, respectively, and the consolidated com- plaint issued on these charges on August 7, 1981. The charge in Case 7-CA-19730 was filed by the Union on August 24, 1981, and the fifth consolidated complaint issued on September 24, 1981. The issues in this case are whether Bil-Mar Foods, Inc. (Respondent): (1) interrogated and threatened its employ- ees in violation of Section 8(a)(1) of the Act; (2) created the impression among its employees that their union ac- tivities were under surveillance in violation of Section 8(a)(1) of the Act; (3) intentionally damaged a union rep- resentative's automobile in the presence of Respondent's employees in violation of Section 8(a)(1) of the Act; (4) denied employees Patsy Geil her Saturday overtime work in violation of Section 8(a)(1) and (3) of the Act; (5) denied striking employees their vacation pay in viola- tion of Section 8(a)(1) and (3) of the Act; (6) withdrew recognition of the Union on June 16, 1981, as the bar- gaining representative of its employees in violation of Section 8(a)(1) and (5) of the Act; (7) instituted unilateral changes in wages, benefits, and conditions of employ- ment in violation of Section 8(a)(1) and (5) of the Act, and (8) converted a lawful economic strike, which began on February 1, 1981, into an unfair labor practice strike by withdrawing recognition of the Union on June 16, 1981. Respondent's answers to the consolidated com- plaints, duly filed, denies the commission of any unfair labor practices. The parties were afforded an opportunity to be heard, to call, to examine and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hear- ing, briefs have been received from the parties in this case. On the entire record2 and based on my observation of the witnesses and in consideration of the briefs submit- ted, I make the following i All dates here referred to in 1980 unless otherwise indicated. 2 Counsel for Respondent filed a motion to correct the official tran- script of the proceedings and none of the parties have opposed his motion After carefully considering the motion and the transcript, I Continued BIL-MAR FOODS 791 FINDINGS OF FACT I. JURISDICTION The Company, a Michigan corporation, with its princi- pal place of business in Zeeland, Michigan, is engaged in the processing, manufacture, and distribution of poultry products. The Company, in the course and conduct of its business operations, has annual gross revenues in excess of $500,000. It also annually purchases and receives goods and materials valued in excess of $50,000 directly from points located outside the State of Michigan. The Company admits, and I find, that it is an employer en- gaging in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Company further admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. it. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union was certified as the bargaining representa- tive of Respondent's production employees 10 years ago. Since that time, the parties have entered into three col- lective-bargaining agreements, the last of which expired on January 31, 1981. The unit employees are engaged in a lawful economic strike that began on February 1, 1981, and which is still in progress at the time of this hearing. B The Allegations Involving Patsy Geil Patsy Geil was employed by Respondent from April 20, 1977, until July 29, 1981. She was initially employed in the regular production unit where she also was a shop steward for the Union. In 1978, she was transferred to the quality control department, where she worked with five other quality control technicians who were not rep- resented by the Union or covered by the collective-bar- gaining agreement. In August, Union Business Agent John Winkle at- tempted to organize Respondent's quality control em- ployees. He asked Patsy Geil to sign a union authoriza- tion card, which she did on August 29. On September 6, Herbert Weiner, Respondent's director of technical serv- ices, and Herbert Brogmen, Respondent's director of convenience foods manufacturing, called Geil to a meet- ing in the quality control office. At this meeting with Geil, Weiner stated that he had just come from a compa- ny meeting where they had heard that union authoriza- tion cards were being signed and wanted to know if Geil or anyone else had signed a union authorization cars. Geil told him that she had not signed an authorization card. Weiner further asked her whether she had any for- mulas or recipes for products in her possession. Geil re- sponded that she did not. Weiner further stated that since she had been a former shop steward they thought that she would be the one who was involved in the union business. Weiner stated that he wanted to assure hereby grant Respondent the motion to change the transcript at p 118 adding the word "allegedly" before the work perpetrated in counsel for Respondent's statement I will deny counsel's request to change Lupton's answer at p 315 from no to yes because the court reporter's notes sup- port the transcript answer Gary and Jack DeWitt (Respondent's president and vice president, respectively) that she was not involved in any union activities. At this time Geil told Weiner that she was leaving the Company for a better paying job. Weiner asked her if he could tell Jack and Gary and she said yes. On September 16, several quality control technicians drafted a letter to their fellow employees, which in effect stated that they did not wish to be represented by a union. These technicians signed the letter and asked Geil to sign also, which she declined to do. The letter was posted on a bulletin board in Respondent's lunchroom. Later that day, Terry Borsen, a stipulated supervisor of the crepe line, asked Geil why she had not signed the letter. Geil responded by telling him that she did not want to be a hypocrite. On September 18, Weiner and Ford Benbow, the qual- ity control manager and a stipulated supervisor, had an- other meeting with Geil wherein Weiner said that he wanted them "to have a fresh start." At that time, Geil told them she had signed a union authorization card. At this meeting Benbow complained that Geil was not prop- erly filling out the quality control problem sheets and that he was receiving complaints from other departments because of that. On September 19, Geil asked Benbow whether the em- ployees would be working on Saturdays. He stated that they were but that she would not be working on Satur- days. Earlier that day, Ed Riley, a supervisor in quality control, asked her for her office key that was needed to gain access to the plant on Saturdays. Benbow also told her at this meeting that her attitude had been poor since she had become involved with the Union and that she must improve. He also informed her that the quality con- trol position was a company position and not a union po- sition and that she could not remain in quality control and continue to engage in union activity. On September 23, Benbow again talked to Geil about her attitude, stating that the other production personnel could not work with her. Geil told him that all she had done was sign a union authorization card, that she did not ask anyone else to sign a card, and that all she did was answer questions raised by the quality control tech- nicians about the Union. Benbow noted that Geil had been wearing a jacket carrying a Teamsters insignia and told her that her attitude had changed since she had signed an authorization card and gave her until the coming Friday to change her attitude. Geil returned to Benbow's office on Thursday, Sep- tember 25, and asked him how she was supposed to change her attitude and told Benbow that she wanted to stay in quality control. Benbow replied that Geil could do that only if she gave up her union activity and had nothing to do with the Union. Benbow also told her that she would not be working overtime until the Company could trust her. On September 29, Geil was working on the dinner line when Jack DeWitt grabbed her arm and said, "What is all this union business that you're doing? I want it stopped." Geil said nothing; however, DeWitt further stated that he did not like the way she was talking to her 792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD supervisor. Geil asked for an appointment with DeWitt to find out what he was talking about. On October 1, Geil met with DeWitt and asked him what he was referring to with regard to his dislike of the way she talked to her supervisor. DeWitt said there there was nothing specific from Benbow but that he had just heard things. DeWitt then asked Geil why she had signed a union card and why she was trying to get a union to organize the quality control technicians. Geil responded by saying that she had attempted to organize the technicians, but since it had failed the matter had been dropped and that she was not pursuing it any fur- ther. DeWitt then told her that she had to make up her mind whether she was going to be a company employee or a union employee and that he was not comfortable with her. He told her to straighten up and not be in- volved with the Union any more or she would lose her job at Bil-Mar. Geil testified that during the time she worked in qual- ity control she almost always was asked to work on Sat- urday and that it became routine that she was always asked and that she routinely worked on Saturday. She testified that other employees would not work Saturdays unless she was on vacation and that usually "P-2" was the department that worked overtime on Saturdays al- though "P-3" worked overtime beginning in October. Geil testified that on September 19 Benbow told her that quality control would be working Saturday but that she would not be working Saturday. Geil further testified that she was offered overtime work on Saturday, Octo- ber 18, but turned it down and that she was offered overtime work on Saturday, October 25, and did work. The parties stipulated that after November 24 Geil was not available to work overtime on Saturday. The parties further stipulated that the quality control department worked overtime on the following Saturdays: September 6 and 27; October 4, 11, 18, and 25; November 1, 8, 15, and 22. They further stipulated that Patsy Geil worked overtime on the following Saturdays: September 6, Octo- ber 25, and November 8 and 22. The parties further stip- ulated that Geil did not work because of an injury from November 24 to January 12, 1981. She returned to work on January 12, 1981, and worked until January 28, 1981, when she again incurred an injury and that she never re- turned to work thereafter. She voluntarily quit her em- ployment with Respondent on July 29, 1981. Geil testified that she worked as a quality control technician under the supervision of Ed Riley who re- ported to Ford Benbow, the manager, who in turn re- ported to Phillip Weiner, the director. In her capacity as a laboratory technician in quality control, Geil had access to recipes and formulas of the airline dinners pro- duced by Respondent. These were highly confidential recipes that were kept in a locked file in the quality con- trol department. Geil testified that she had no authority to hire, discharge, or discipline an employee. However, her job entailed monitoring standards set by the Compa- ny and the U.S. Department of Agriculture. She per- formed this function by referring to checklists that had been prepared by management. Geil testified that part of her function was to check incoming raw material. She further checked on food preparation on the line and re- ported deficiences on a "problem sheet" and turned them over to Benbow. She further completed check sheets on raw and cooked weights of the products produced, i.e., stuffed peppers, and recorded this information on weight sheets. She had the authority to tell an employee to wear gloves but no authority to ask them to leave the line. Part of her job duty consisted of commenting to supervi- sion on substandard work of employees. For example, if bags of meat were not opened properly or if employees were not weighing the products properly, she would report this to supervision in order to maintain a certain quality or standard. She also had the authority to inform supervision as to which employees were not performing their jobs properly. However, this basically consisted of improper sanitary procedures, not wearing gloves, hats, or hair nets or wearing jewelry when there should have been no jewelry worn. Respondent offered the testimony of Joan Hansen who stated that she worked in quality control in the "P-2" area and when "P-2" worked Saturday she was usually the one who was asked to work although she further tes- tified that she turned down overtime on several occa- sions for personal reasons. Respondent's next witness, Ford Benbow, testified that at least since April it has been his practice to ask Joan Hansen first when Saturday overtime work was available in the "P-2" department. He further testified that in Sep- tember quality control employee Judy Jesser became qualified to work in the P-2 department, and she asked to be rotated to Saturday overtime when possible. Benbow further testified that he took Patsy Geil' s recommenda- tions into account in denying a promotion to employee Kathie Velderman, but denies that she was ever aware that Velderman was being considered for a management training position. Benbow further testified that quality control technicians take part in hiring of new employees into the department through participation and interviews and discussions of the candidates although he is the person who actually hires the applicant. Benbow further testified that quality technicians have the authority to recommend transfer or discharge of an employee and their recommendations are considered. Analysis and Conclusions Respondent did not deny any of the allegations testi- fied to by Patsy Geil, but instead argued in its brief that the quality control technicians are either managerial or supervisory employees. Respondent conceded in brief that the quality control technicians are not confidential employees. The record evidence does not support Respondent's contention that the quality control technicians are mana- gerial employees. There is no probative evidence in this record that the technicians participate in the formulation or implementation of company policy or that they can commit the Company's credit in any respect. Indicia of supervisory authority is also lacking. Although Respond- ent's witness attempted to show that the quality control employees participated in the hiring of other employees and also had the authority to recommend the transfer or discharge of employees, I have discounted this evidence BIL-MAR FOODS 793 in favor of Geil's testimony of what she actually does on a daily basis, which is to assure that the quality of the product is maintained during the production process. In performing this function, she, like the other quality con- trol technicians, is guided by strict company standards, which they follow. Geil, like the other technicians, report to a supervisor and have no employees to super- vise. The record is clear that the quality control techni- cians perform the usual functions of a quality control em- ployee exercising that judgment, which is normal and usual for that position. Therefore, based on my findings, I conclude that since Respondent did not refute any of the allegations outlined in paragraphs 8(a) through (f) of the complaint, I find that Respondent violated Section 8(a)(1) of the Act as al- leged in paragraphs 8(a) through (f) of the consolidated complaint The General Counsel further alleges in paragraph 9 of the complaint that Geil was denied Saturday overtime work in violation of Section 8(a)(1) and (3) of the Act. I cannot agree. The General Counsel did not offer any evidence that Geil was actually denied overtime work other than the statement by Benbow that she would be denied that work. The record is, clear that during the period in question, Geil worked overtime on four Satur- days and refused overtime work on another Saturday Further, the parties stipulated that Geil was not available for Saturday work after November 24. Respondent of- fered unrefuted evidence as to why other employees worked some Saturdays after September, which I accept in light of the fact that Geil shared the Saturday over- time work with these employees. Accordingly, I will dis- miss the General Counsel's allegation in paragraph 9 of the consolidated complaint. C. The Allegations Involving Debra Goerbig The General Counsel, in support of the allegation con- tained in paragraph 8(g) of the complaint, offered the testimony of Debra Goerbig, who testified that she was attending a regular grievance meeting with Personnel Director William Wood on the afternoon of January 8, 1981, when Jack DeWitt entered the office and "wanted to know how I had known about the Union winning the complaint that Patsy Geil had filed." Goerbig who was the Union's chief steward told him that she had received some papers stating that the Union has won the case and asked DeWitt if he would like to see them. When DeWitt responded that he would, she went upstairs to get the papers. When Goerbig returned with the papers she was informed by William Wood that the Company already had a copy of the complaint. They entered Mi- cheal Lupton's (corporate director of personnel) office. DeWitt asked her why people were going around saying that Debra Goerbig was saying that the Pat Geil case had been won by the Union She told him that she had received papers, and that to the best of her knowledge the Union had won, and that if she had made a mistake she was sorry DeWitt said that he accepted her apol- ogy. Goerbig reminded Wood that they had a grievance meeting to attend, turned back to DeWitt, and said that if the Union had not won the case they would and, on her way out of the room stated that, "The Company could make mistakes but, the Union couldn't make mis- takes." Shortly thereafter, she had a conversation with Lupton in which Lupton stated that he did not know what had gotten into Jack, and that he had asked Jack not to "jump on" her, and that he was sorry. She re- sponded that, "us stewards, we had it coming, that we could take it." Analysis and Conclusions I can find nothing in the testimony of Goerbig that supports the General Counsel's allegation that DeWitt either interrogated or threatened Goerbig with loss of employment. The only evidence of interrogation seems to be an inquiry by DeWitt why Goerbig was informing the employees that the Union had won the Geil case when all that had occurred was the issuance of a com- plaint involving her by the National Labor Relations Board. Goerbig admitted her error and apologized. I cannot find under these circumstances that the coercive interrogation in violation of Section 8(a)(1) of the Act took place. Further, I do not find any evidence of a threat being made to Goerbig. Accordingly, I will dis- miss the 8(g) allegation in the consolidated complaint. D. The Allegations Involving Tire Slashing In support of paragraph 8(h) in the consolidated com- plaint, the General Counsel offered the testimony of three witnesses. Kathie Velderman testified that she was picketing at Bil-Mar Foods on the night of February 20 near the en- trance drive by the company store, which is a small retail owned and operated by Respondent and is located on Respondent's premises near the driveway entrance. She testified that about 9:50 p.m "the country store went up in flames" and that all the picketers took off. Although Velderman saw four or five people in the vi- cinity of the country store when it caught fire, she could not identify any of them. Later, Velderman saw compa- ny security officials leave their parked cars next to the factory and put out the fire. Shortly after the fire was extinguished, the fire department arrived and Velderman left her car and went back to the picket line. According to Velderman, Union Agent Van De Wege's car was parked in front of the country store. Velderman noticed the union agent's automobile and also observed a fireman leaning on it. She testified that after a few minutes, she saw Gary DeWitt go to the front driver's side of the car and bend down, and Ray DeWitt walked over to the rear passenger and bend down. She did not see what they were doing. She then testified that Ray DeWitt came forward to the front passenger side of the car and bent down to look at the tire. Velderman testified that she and Joyce Anderson then started walking over to the union agent's car, observed that the front and rear pas- senger side tires were flat and that Joyce Anderson then said, "Well, so you're the ones slashing the tires out here?" Gary DeWitt replied, "You better not say noth- ing, or you ain't working at Bil-Mar again." She testified that she responded to Gary DeWitt's comment by saying, "Good," and that he stated, "You weren't worth nothing inside, you weren't worth nothing outside, so get 794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD out of here." Velderman laughed at him and walked away. On cross-examination Velderman denied that she had made a prior statement to the Ottawa County Sher- iffs Department which she stated that she had seen Gary and Ray DeWitt cut the tires on the union agent's car. After being confronted with the document, which she admitted she wrote and signed, which stated, "I saw Gary DeWitt and Ray DeWitt cut the Union man's tires," Velderman admitted that she had given that state- ment to the Sheriffs Department. Joyce Anderson testified that she was picketing next to the pickets camp fire at Bil-Mar Foods on the night of February 20. She testified that about 8:45 p.m. the coun- try store was on fire and that she "took off" and came back about 20 minutes later when she saw that the fire was out and that one of the union representative's tires was slashed. She then testified that she saw Gary DeWitt standing on the passenger side of the union representa- tive's car and Ray DeWitt kneeling down on the rear passenger side of the car. She testified that she stated, "Gary, I seen what you did to our union representative's car" and that Gary DeWitt did not respond but just "kind of gave me a stern look." She did not see Gary or Ray DeWitt slash the tires on the union representative's car. Robert Van De Wege, a union representative, testified that on February 20, 1981, his car was parked in front of the country store and that on that date he discovered, between 10:30 and 11 p.m. that he had three flat tires. He further testified that when he observed the flat tires, he approached the picketers and asked them if they had seen who had flatten the tires and that Anderson and Velderman responded that they had seen who had flat- tened the tires and that it was Ray DeWitt. Velderman testified that no other name was mentioned. Respondent called Gary DeWitt, president of Bil-Mar Foods, who testified that on February 20, 1981, between 5 and 5:30 p.m. he left his office, walked directly to his car, and went home. He returned at approximately 9:30 p.m., went to his office for 1 or 2 minutes, sat in a car with a security guard for approximately 5 minutes, and then went home arriving at approximately 9:45 or 9:50 p.m. At 10:15 p.m., he received a call from his brother, Jack DeWitt, that the country store was on fire and drove back to the plant arriving approximately 10:25 p.m. He parked his car; walked to the front of the coun- try store; and observed that the front of the store was burned out, that windows were broken, and that there was glass and oil over the front of the store driveway and sidewalk. The fire had already been extinguished. He spoke with the security guard for a minute, then noticed that there was a sheriff's car parked on the street and went over and talked to the officer in that car. He then left the sheriff's car and walked back to the front of the country store, saying hello to Union Representative Winkle who was in the vicinity at the time. Two picket- ers were following Winkle to the sheriffs car, DeWitt did not speak to them. DeWitt then went back to the front of the country store and spoke with Murl DeWitt, Ray DeWitt, and Keith DeWitt. John Winkle and an- other business agent were also there. DeWitt observed that in addition to the sheriffs car, a black Buick was parked in front of the country store. He passed that car when going to and coming from the sheriffs car but did not pause by it or stoop down by it. He was not charged with any criminal offense in connection with the strike at Bil-Mar; however, he was aware that Bill DeWitt Jr. was charged criminally with tire slashing. However, the disposition of that charge was still pending at the time of this trial. DeWitt further testified that he did not slash the tires on the union agent's car, did not stoop down nelct to the union agent's car, did not see anyone slash any tires, did not speak with any pickets, and did not make the comments by Kathie Velderman. Analysis and Conclusions The General Counsel's witnesses did not see anyone slash the tires on the union representative's automobile. The evidence also establishes that several other people were near the automobile during the critical hours. Fur- thermore, the testimony of Anderson and Velderman cannot be credited over the testimony of Gary DeWitt because they contradicted each other on critical eviden- tiary points. Velderman claims that Gary DeWitt made some incriminating statements to them while Anderson stated that nothing was said to them. Velderman testified that she saw the flat tires after she saw the DeWitts near the union representative's automobile while Anderson testified that she saw the flat tires before she saw the DeWitts near the automobile. Further, Velderman clear- ly made a prior inconsistent statement to the police de- partment when she asserted that she saw the DeWitts slash the tires when, in fact, she did not. Ray DeWitt, on the other hand, denies having any conversation with An- derson and Velderman and further denies slashing any tires. Under these circumstances, the General Counsel has not proven a preponderance of the evidence that the Dewitts slashed the tires on the union representative's automobile. After discrediting the testimony of Anderson and Velderman on critical evidence given by them, I find nothing but pure speculation remains, which is insuf- ficient to support the General Counsel's allegation. Ac- cordingly, I will dismiss the 8(h) allegation in the con- solidated complaint. E. Vacation Pay It is undisputed that Respondent refused to pay strik- ing employees their accrued vacation benefits while paying vacation benefits on June 26, 1981, to those em- ployees who crossed the picket line and worked. The latest collective-bargaining agreement provides: The vacation year shall be July 1 to June 30 fol- lowing. Vacation will be payable the first week of July for the previous vacation year. .. . All full-time employees covered by this agree- ment who are on the employers payroll as of July 1, of each year and below during the vacation pay in schedule: have worked the hours specified vacation year shall be entitled to accordance with the following 1600 hours-full vacation 1200 hours-3/4 vacation BIL-MAR FOODS 900 hours-1/2 vacation 500 hours-1/4 vacation Respondent's witness Gary DeWitt testified that the above policy has been followed consistently by Respond- ent over the years with respect to all employees and that the reason the striking employees were not paid their ac- crued vacation was because they were not on the Em- ployer's payroll as of July 1. Analysis and Conclusions The Board held in Vesuvius Crucible Co, 252 NLRB 1279 (1980), that it is well settled that employees partici- pating in a lawful strike retain their statutory status as employees and a employer may not equate strike time with other forms of unexcused absence to deny strikers their accrued benefits. To do so would impermissibly pe- nalize employees for engaging in protected activity. The respondent argued in that case that its policy had been that employees must perform some work in the vacation year in order to qualify for vacation and because the em- ployees struck and did not work during the vacation year they were not entitled to their accrued benefits. The Board held that by refusing to grant strikers their bene- fits during the vacation year because the employees struck rather than worked that year, respondent unlaw- fully penalized strikers for exercising their protected right to strike and found that respondent had violated Section 8(a)(1) and (3) of the Act by denying the striking employees their accrued vacation benefits. I find that in the instant case the only reason the strik- ing employees were denied their accrued vacation bene- fits was because they were on strike and not on Re- spondent's payroll as of July 1, 1981. Thus, it can only be concluded that Respondent penalized its employees for striking. The General Counsel urges that I find a violation of Section 8(a)(1) and (3) of the Act by Respondent's action of withholding vacation benefits from the striking em- ployees. However, there was no evidence presented that Respondent's intent was to discriminate against them be- cause they engaged in a work stoppage. Rather, it ap- pears that Respondent's nondiscriminating action resulted as a consequence of its employees' engagement in such activity and Respondent's literal reading of the contract, which nevertheless, violated Section 8(a)(1) of the Act. Knuth Bros. Inc., 229 NLRB 1204 (1977); C. F. Martin & Co., 252 NLRB 1192 (1980). F. Withdrawal of Union Recognition Respondent and the Union engaged in negotiating ses- sions from prior to the expiration of the latest contract up to April 1981. From mid-May through early June, two to four bargaining unit employees submitted 45 peti- tions to the Bil-Mar Foods personnel department. These petitions were entered into evidence at the hearing as //Respondent's Exhibit 5, consisting of pages (a) through (ss)•a s These petitions contained an employee's signature, date, and usually an employee's clock number The petitions are dated from March 3 to June 9, 1981 There were three petitions that were undated R Exhs 795 The petitions, which have been marked as Respond- ent's Exhibits 5(a) through (hh), bear the legend:- The undersigned employees of Bil-Mar Foods, Inc., presently represented by the International Brotherhood of Teamsters, Local 406, wish to have the National Labor Relations Board conduct an election since"we believe a majority of employees in our unit no longer want to be represented by the above union. Petitions (hh) through (ss) of Respondent's Exhibit 5 bear the legend. We the undersigned wish to have the Teamsters Union Local 406 withdrawn as being our union rep- resentatives. Commencing on receiving of the first petition, Michael Lupton, Respondent's personnel director, kept a running count of the number of bargaining unit employees whose signatures appeared on these petitions. By June 16, 1981, Lupton's calculations revealed that 351 unit employees had signed the petitions not counting duplicate signatures and employees who had quit. By checking signatures against payroll and seniority records, Lupton determined that 243 of the 463 employees in the unit at the com- mencement of the strike had signed the petitions, and that 108 of the 180 full-time employees hired subsequent to the commencement strike had also signed the peti- tions. In addition to performing the above calculation, Lupton instructed Kenneth Wood, personnel manager of Bil-Mar Foods, Inc., to verify the signatures on the peti- tions with those in the employees personnel folders. Wood checked each signature against those appearing on each employee's employment application and determined that they were similar and reported this to Lupton. On June 16, 1981, Lupton met with Gary DeWitt, Jack DeWitt, and Respondent's counsel, and informed them of his conclusion that a majority of the employees did not wish to be represented by the Union. Following a review of the petitions at the June 16 meeting, Gary DeWitt also concluded that a majority of the employees did not wish to be represented by the Union and in- structed Jack DeWitt to send the Union a letter so in- forming them. The letter sent by Jack DeWitt to Robert Barnette, secretary-treasurer of the Union, and dated June 16, 1981, reads as follows: This is to advise you that Bil-Mar Foods, Inc., has received objective evidence indicating that your union does not represent a majority of Bil-Mar pro- duction employees In view of our doubt concern- ing your majority status, we believe it would be in- appropriate for us to continue recognition of your union as the representative of Bil-Mar production employees. 5(m), (n), and (o) These three petitions contained 10 signatures, however, since they were received by Respondent along with the other petitions no later than early June, I find that they also support Respondent's good- faith doubt 796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Analysis and Conclusions The General Counsel has offered evidence in this case sufficient to support a rebuttable presumption of the in- cumbent Union's majority status by establishing a bar- gaining history of 10 years during which period the par- ties entered into three collective-bargaining agreements, the last of which expired in January 1981. However, Re- spondent offered objective evidence that supported its good-faith doubt of the Union's continued majority status. Respondent was not charged with nor was there any evidence of general bad-faith bargaining prior to June 16, 1981. The petitions submitted to Respondent by unit employees were untainted. Although the language on the first group of petitions requests an election, con- sidering the fact that the language was drafted by unit employees, it also conveys the distinct impression that the signers no longer wanted to be represented by the Union. The second group of petitions contains more pre- cise language in conveying the signers sentiments. How- ever, I find that all the petitions and legends contained therein are sufficient to support Respondent's reasonable belief that the Union no longer represented a majority of its employees. At this point, Respondent probably had sufficient basis for a reasonable doubt. Guerdon Indus- tries, 218 NLRB 658 (1975). However, Respondent did not stop there. It verified the signatures and made vari- ous mathematical calculations sufficient to assure itself that indeed a majority of its unit employees no longer wanted union representation. American Express Reserva- tions, 209 NLRB 1105 (1974). The only issue remaining is whether Respondent's doubt was asserted in the context of illegal antiunion ac- tivities. Celanese Corp., 95 NLRB 646 (1951); Guerdon Industries, supra. In defining the effect unfair labor prac- tices have on Respondent's assertion of a good-faith doubt, the Board has held that the commission of unfair labor practices does not necessarily prohibit the employ- er from challenging the majority status of a union but the employer's activities must be examined to determine whether they would likely cause a departure from the union's ranks. Colonial Manor Convalescent Center, 188 NLRB 861 (1970). The Board has also held in Guerdon Industries that the employer's unfair labor practices must be of such a character as to affect the union's status, cause employee disaffection, or improperly affect the bargaining relationship itself in order to find an unlawful withdrawal of recognition. Although I have found certain unfair labor practices committed by Respondent in the case before me, I cannot find that Respondent's conduct meets any of the Board's criteria for finding an unlawful withdrawal of recognition. The unlawful 8(a)(1) conduct was commit- ted at least 5 months prior to the signing of the petition against a single employee who was not in the unit. Fur- ther, this employee was absent from Respondent's plant during the entire time the petitions were being signed. In fact, she was absent, with the exception of approximately 2 weeks in January 1981, the entire time from November 24 until she voluntarily left Respondent's employ in July 1981. The withholding of vacation benefits by Respondent occurred at least 2 weeks after the last petition was signed and turned to Respondent and was not sufficiently serious to cause employee disaffection from the Union. C. F. Martin & Co., supra. Accordingly, I find that Respondent had a good-faith reasonable doubt at the time of its withdrawal of recog- nition on June 16, 1981, and therefore, did not violate Section 8(a)(1) and (5) of the Act by refusing to recog- nize the Union any further. I therefore dismiss the allega- tions contained in paragraph 14 of the consolidated com- plaint. G. Unilateral Changes The consolidated complaint alleges in paragraph 15 that Respondent announced changes in wages, life insur- ance, health insurance, vacations, grievance procedures, job opening procedures, communications procedure, and disciplinary procedure on June 24 and 25, 1981, and thereafter instituted these changes. Paragraph 16 of the consolidated complaint alleges that Respondent engaged in these actions unilaterally and without giving the charging union prior opportunities to bargain. Respondent's answer admitted the allegations in para- graph 15 with the exception of wage increases that were denied and denied the allegations in paragraph 16. Analysis and Conclusions There was no probative evidence in the record as to what changes were made in the benefits by Respondent. The General Counsel offered no evidence that any wage increase was implemented by Respondent. However, having found that Respondent had a good-faith doubt concerning the Union's majority status and so informed the Union on June 16, 1981, I further find that Respond- ent was under no obligation to inform the Union or ne- gotiate concerning its proposed changes in benefits, which were instituted after Respondent entertained its good-faith doubt. Accordingly, I will dismiss the allega- tions contained in paragraphs 15 and 16 of the General Counsel's consolidated complaint. H. Unfair Labor Practice Strike The General Counsel in its fifth consolidated com- plaint amended paragraph 10 to read as follows: From about January 31, 1981, the charging union has been engaged in an economic strike against Re- spondent, which is protected activity and which was converted into an unfair labor strike about June 16, 1981, because of Respondent's conduct de- scribed below in paragraph 14. Analysis and Conclusions The General Counsel contends that the withdrawal of recognition by Respondent on June 16, 1981, converted a lawful economic strike into an unfair labor practice strike. Having found that Respondent's action in with- drawing recognition from the Union was not a violation of Section 8(a)(1) and (5) of the Act, I further find that no unfair labor practice strike occurred on or after June BIL-MAR FOODS 16, 1981. Accordingly, I will dismiss the allegations con- tained in paragraph 10 of the consolidated complaint. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent interfered with, coerced, and restrained its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act, thereby committing unfair labor prac- tices prohibited by Section 8(a)(1) of the Act by: (a) Creating the impression that an employee' s union activities were under surveillance. (b) Interrogating an employee concerning her union activities. (c) Threatening an employee with loss of employment if she supported or assisted the Union. 4. By denying vacation benefits to striking employees, while paying them to nonstriking employees, Respondent has violated Section 8(a)(1) of the Act. 5. All production employees employed by Respondent at its facility located at 8300 96th Avenue, Zeeland, Michigan; but excluding drivers, part-time employees (during the months of September through December and not to exceed five employees at any one time), mainte- nance employees, after production hours clean-up em- ployees, co-op students, student vacation help, office clerical employees, confidential employees,, professional employees, guards, and supervisors as defined in the Act, constitutes a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 6. Respondent had a good-faith doubt of the Union's majority status when it withdrew recognition on June 16, 1981. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 8. Except as found above, Respondent has not engaged in other unfair labor practices as alleged. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices., I shall recommend that it be ordered to cease and desist therefrom and take affirmative action necessary to effectuate the policies of the Act. 797 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Bil-Mar Foods, Inc., Zeeland, Michi- gan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Creating the impression that an employee's union activities are under surveillance (b) Interrogating employees concerning their union ac- tivities. (c) Threatening employees with loss of employment if they support or assist the Union. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Pay all striking employees their accrued vacation pay, which was due them about July 1, 1981, for work performed from July 1, 1980, up to the commencement of the strike together with interest from July 1, 1981, to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). (b) Post at its Zeeland, Michigan facility copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writ- ing within 20 days from the date of this Order, what steps Respondent has taken to comply. * If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "