Rose Printing Co. Inc.

252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rose Printing Company, Inc. and Graphic Commu- nications Union, Local 241-B, Graphic Commu- nications International Union , AFL-CIO, CLC and George W. Hayson. Cases 12-CA-11819, 12-CA-11912-3, 12-CA-11958, 12-CA-12033, and 12-CA-12046 June 20, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On October 24, 1986, Administrative Law Judge Hutton S. Brandon issued the attached decision. The General Counsel filed exceptions, a supporting brief, and a Motion for Correction of the Decision of the Administrative Law Judge,' the Union filed exceptions , and the Respondent filed exceptions and a supporting brief. Thereafter, the General Counsel and the Respondent filed reply briefs. 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,2 and ' In the motion to correct the judge's decision, the General Counsel contends that the judge inadvertently omitted from his Conclusions of Law his finding that the Respondent violated Sec 8 (a)(1) by unlawfully assisting employee Shivar's decertification petition and that the judge in- advertently referred in sec. II,F of his decision to those strikers named in "Appendices A and B" rather than those strikers named in Appendices B and C We grant the General Counsel's motion to correct the judge's de- cision and we shall modify the Conclusions of Law accordingly We further correct the judge's inadvertent statement in sec II,A of his decision that employee Hayson circulated a decertification petition among the bindery employees. Hayson circulated such a petition among the maintenance employees Finally, we correct the judge's erroneous statements in secs II,A and E, as well as the Conclusions of Law and the remedy sections, of his decision that the strikes in the bindery and main- tenance units began on January 22, 1986 The evidence establishes that the Union called a strike in the bindery unit on January 20, 1986, and that the maintenance unit went on strike on January 23, 1986 2 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 The judge found that the Respondent did not engage in bad-faith bar- gaining with the Union concerning a successor contract in the bindery unit and an initial contract in the maintenance unit No exceptions to these findings were filed Contrary to our dissenting colleague, we agree with the judge that the Respondent violated Sec 8(a)(1) by unlawfully encouraging or assisting employee Shivar in the filing of a decertification petition We note that Shivar asked Supervisor Capps only how he could get the Union to stop "harassing" him, not how to remove the Union as the employees' collec- tive-bargaining representative . At that point, there is no evidence that Shivar had independently decided to petition to decertify the Union Rather, it was Supervisor Capps' suggestion that Shivar file a decertifica- tion petition that resulted in the circulation of a decertification petition Consequently, the Respondent in fact instigated the decertification effort and, as that action has a tendency to interfere with employees' exercise of their Sec 7 rights, it violates Sec 8(a)(1) The fact that the Respondent's conclusions3 as modified and to adopt the recom- mended Order as modified.4 1. The judge concluded, inter alia, that the Re- spondent's unilateral decision to require its employ- ees to use their accrued vacation time during a forthcoming 5-day 1985 Christmas shutdown period constituted a unilateral change in employ- ees' working conditions in violation of Section 8(a)(5). He also found that by refusing to arbitrate a grievance filed by the Union concerning this compulsory vacation use requirement, the Re- spondent had breached its duty to bargain. Al- though we adopt the judge's conclusion and ration- ale concerning the unilateral change violation, we affirm the finding that the refusal to arbitrate vio- lated Section 8(a)(5) on the basis of the rationale set forth in Indiana & Michigan Electric Co., 284 NLRB 53 (1987). In that decision we held, inter alia, that the respondent's refusal to arbitrate any grievances after the expiration of the collective- bargaining agreement constituted a wholesale repu- diation of its obligation to arbitrate in violation of the Act. Under the circumstances in this case, we find that the Respondent's refusal to arbitrate vio- lated the Act. After denying the Union's grievance concerning the compulsory vacation use, the Re- spondent stated that it would not arbitrate the grievance because the Christmas shutdown was to occur after the contract had expired. In essence, the Respondent maintained that it had no obliga- tion to arbitrate any grievance involving a matter which would occur after the expiration of its con- tract with the Union. This refusal to arbitrate thus "constituted an unlawful unqualified abandonment because it encompassed not only grievances for which there may have been no postexpiration obli- gation to arbitrate under Nolde, but also grievances arbitrable under Nolde." Indiana & Michigan Elec- tric Co., supra. See also Litton Business Systems, 286 NLRB 817, 818-819 (1987). Accordingly, we con- clude that the Respondent's unqualified refusal to arbitrate violated the Act.5 conduct may not have been as active or prolonged as in some of the cases cited by the judge, in our view, does not negate its unlawful nature Finally, given the circumstances here, including particularly that it was Capps, not Shivar, who raised the idea of the filing of a decertification petition, we cannot attribute the significance which our dissenting col- league does to the mere fact that Shivar approached Capps * The judge included in his remedial order a visitatonal clause author- izing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the super- vision of the United States court of appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to include such a clause See Cherokee Marine Terminal, 287 NLRB 1080 (1988) Accord- ingly, we shall modify the judge's recommended Order by deleting this provision 5 We find it unnecessary to address whether the underlying grievance was arbitrable. As we have adopted the judge's finding that the compul- Continued 289 NLRB No. 31 ROSE PRINTING CO. 2. Following unsuccessful negotiations to obtain collective-bargaining agreements in the bindery and maintenance units, the Union called a strike in both units. As noted, the record reveals that the bindery unit employees commenced a strike on January 20, 1986,6 and the maintenance unit began striking on January 23. Although the judge found that these strikes were economic at their inception, he con- cluded that they both were converted into unfair labor practice strikes on March 5, the date on which the Respondent unlawfully withdrew recog- nition from the Union in the maintenance unit.? He thus determined that all striking employees in the two units had become unfair labor practice strikers as of that date. The Respondent has excepted to the judge's finding that the strike was converted into an unfair labor practice strike, arguing first that the withdrawal of recognition in the mainte- nance unit was lawful. Alternatively, the Respond- ent argues that even if the withdrawal of recogni- tion in that unit was unlawful and the strike was converted into an unfair labor practice strike in the maintenance unit, the strike in the bindery unit re- mained an economic strike. As we have adopted the judge's conclusion that the decertification peti- tion in the maintenance unit was the product of un- lawful assistance and therefore have adopted his conclusion that the withdrawal of recognition in that unit was unlawful, we agree with the judge that the strike in the maintenance unit was convert- ed into an unfair labor practice strike by the unlaw- ful withdrawal of recognition. We find merit, how- ever, in the Respondent's exception to the judge's finding that the strike in the bindery unit was thereby also converted into an unfair labor practice strike. As the judge noted, an economic strike is con- verted into an unfair labor practice strike when an employer's unfair labor practices aggravate or pro- long the strike. It is well settled that the unlawful withdrawal of recognition from a union prolongs the strike because it deprives the employees of their bargaining representative and thereby pre- cludes the possibility of reaching agreement on a contract and impedes the settlement of the strike. See Ashe Brick Co., 280 NLRB 1383, 1391 (1986); Wilder Construction, 276 NLRB 977, 982 (1985), enfd. 804 F.2d 1122 (9th Cir. 1986). Accordingly, the Respondent's unlawful withdrawal of recogni- tion from the Union in the maintenance unit con- verted the strike in that unit into an unfair labor sory use of vacation time constituted an unlawful unilateral change and have ordered the Respondent to rescind this action and to restore ac- crued vacation leave, the gnevance has become moot 6 All dates are 1986 unless noted otherwise ' In contrast , the judge found the March 4 withdrawal of recognition in the bindery unit to be lawful and we affirm that finding 253 practice strike. Our reasoning requires a different result, however, with respect to the strike in the bindery unit. The judge found, and as noted, we agree, that the decertification petition filed in the bindery unit by employee Rogers was not tainted by unfair labor practices and that the Respondent lawfully withdrew recognition from the Union in that unit on March 4. Consequently, the withdraw- al of recognition in that unit was not an unfair labor practice and could not prolong the strike in that unit because the Respondent no longer had any legal obligation to bargain with the Union in that unit. Nor do we accept the argument that the bindery unit employees were sympathy strikers in support of the maintenance unit strikers. The bind- ery unit employees went on strike before the main- tenance unit employees commenced their strike and no evidence was proffered to establish that the bindery unit employees continued their strike be- cause of unfair labor practices committed against the maintenance unit employees. Accordingly, we find that the strike in the bindery unit was not con- verted into an unfair labor practice strike and that the bindery unit employees remained economic strikers. 3. Having determined that only the strike in the maintenance unit was converted into an unfair labor practice strike, we find that only those strik- ers in the maintenance unit who were not replaced as of March 5 are entitled to immediate reinstate- ment with backpay. We shall amend the recom- mended remedy and Order accordingly. In all other respects, we adopt the judge's findings con- cerning the Respondent's refusal to reinstate the striking employees.8 a The Respondent excepted to the judge's conclusion that employees Brad Bowman, Richard Frauenthal , Lester Posey, W E Posey, and Mike Segler did not permanently abandon their employment with the Re- spondent when they executed statements of resignation Alternatively, the Respondent argues that even if these employees are eligible for reinstate- ment, backpay should be tolled as of the date that the resignation state- ments were executed We adopt the judge's finding that the five named employees did not permanently abandon their employment We further find it unnecessary to address the Respondent's alternative argument re- garding backpay because the record does not indicate that any of the five are entitled to backpay in any event As noted above, we have found that only maintenance unit strikers who were not replaced as of March 5 are entitled to immediate reinstatement with backpay Of the five named em- ployees, however, only Brad Bowman and W E Posey were members of the maintenance unit The record discloses , however, that before both of these strikers executed their resignation statements on February 12, the Respondent informed them that their jobs had been filled and that they would be placed on a preferential hiring list Thus, both were replaced before the strike was converted into an unfair labor practice strike Con- sequently , they are not entitled to backpay but they "shall be placed on a preferential hiring list in accordance with their seniority or other nondis- criminatory practice utilized by the Respondent, and they shall be rein- stated before any other persons are hired or on the departure of their pre- conversion replacements [citations omitted] Ashe Brick Co, supra at 1384 254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD AMENDED CONCLUSIONS OF LAW Substitute the following for the judge's Conclu- sions of Law 6, 7, 10, and 11. "6. By announcing about October 16, 1985, and by implementing its decision to require compulsory vacation use by unit employees for the 1985 Christ- mas shutdown without notice to or bargaining with the Union and by generally repudiating any obliga- tion to arbitrate grievances arising after the expira- tion of the collective-bargaining agreement in the bindery unit through its refusal to arbitrate a griev- ance on this action, the Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. "7. By encouraging and assisting employees em- ployed in its bindery and maintenance units in the circulation of petitions to decertify the Union, the Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. "10. The Respondent's violations of Section 8(a)(5) and (1) of the Act referred to in paragraphs 7, 8, and 9 above converted the economic strike in the maintenance unit which began on January 23, 1986, into an unfair labor practice strike on March 5, 1986. "11. By refusing to reinstate those strikers listed in Appendix C to the Board's decision who were not replaced as of March 5, 1986, following the un- conditional request of the Union on behalf of the striking employees made on May 5, 1986, and by treating such strikers as economic strikers, the Re- spondent engaged in, and is engaging in, unfair labor practices in violation of Section 8(a)(3) and (1) of the Act." AMENDED REMEDY We amend the judge's recommended remedy as follows: Because the employees named in Appen- dix C to the Board's decision who participated in the economic strike beginning on January 23, 1986, which was converted into an unfair labor practice strike by the Respondent's violation of Section 8(a)(5) of the Act on March 5, 1986, requested un- conditional reinstatement on May 5, 1986, the Re- spondent shall immediately reinstate them to their former or substantially equivalent positions without impairment of their seniority rights and other privi- leges. In order to make room for them, the Re- spondent shall dismiss, if necessary, all persons hired on or after March 5, 1986. If after such dis- missals there are insufficient positions available for the remaining strikers, any available positions shall be accorded the strikers on a nondiscriminatory basis in accordance with seniority or other neutral criteria. Former strikers named in Appendix B for whom no positions are immediately available shall be placed on a preferential hiring list in accordance with their seniority or other nondiscriminatory basis, and they shall be reinstated before any other persons are hired or on the departure of their re- placements. Further, those former striking employees entitled to immediate reinstatement shall be made whole for any loss of earnings they may have suffered by reason of the Respondent's refusal to reinstate them in accordance with their unconditional request to be reinstated. Backpay shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Re- tarded.9 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Rose Printing Company, Inc., Tallahas- see, Florida, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(c). "(c) Refusing to bargain with the Union by gen- erally repudiating any obligation to arbitrate griev- ances arising after the expiration of the bindery collective-bargaining agreement." 2. Substitute the following for paragraph 2(e). "(e) Immediately and fully reinstate its mainte- nance unit employees listed in Appendix C who participated in the strike which began on January 23, 1986, and who unconditionally reapplied for re- instatement on May 5, 1986, to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, dis- charging, if necessary, any replacements hired in their former jobs on or after March 5, 1986. Make whole these employees for any loss of earnings they may have suffered as a result of the discrimi- nation against them in the manner set forth in the `Amended Remedy' section above. Place the re- maining former strikers on a preferential hiring list in accordance with their seniority or other nondis- criminatory basis and offer them employment before any other persons are hired or on the depar- ture of their replacements." 9 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) ROSE PRINTING CO. 3. Substitute the following for paragraph 2(h). "(h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." 4. Substitute the attached appendices for those of the administrative law judge. CHAIRMAN STEPHENS, dissenting in part. I would not hold that the Respondent unlawfully encouraged the circulation of a decertification peti- tion in the context of a conversation between em- ployee Shivar and Supervisor Capps. Shivar ex- pressed to Capps his feeling that he was being "harassed" by the Union and asked the supervisor how this could be stopped. Capps replied that he did not know but would find out. Later, Capps suggested to Shivar that Shivar should consider circulating a decertification petition. When he ex- pressed ignorance about how to go about this, Capps replied he would seek additional informa- tion. Subsequently, Capps gave Shivar the name and phone number of an attorney to call. The judge recommends that we find that the su- pervisor's initial suggestion was unlawful because it "effectively implanted" in the employee's mind the idea that decertification "was the only alternative available for Shivar's concerns." In the judge's view, the supervisor's comment was, in short, "overkill."' I do not agree with the judge that the supervi- sor's remark had such a mesmerizing effect on the employee's mind as to constitute interference or co- ercion under Section 8(a)(1). Nor do I think that Capps' comment in any way parallels the Board precedents on which the judge relied.2 In those cases, the employer's representatives were engaged in an active course of conduct that encouraged and assisted employees in seeking decertification. The vice of such employer activity is that it interferes with employee free choice in the same way that an unlawful promise of benefits or an unlawful inter- rogation can. In each situation, the employees are expected to respond in a way favorable to the em- ployer. A failure to make the expected response carries the risk of retaliation. Here, in contrast, the employee approached the supervisor, posing an open-ended question concern- ing union harassment. Capps' limited response, not- withstanding the fact that it was given at a later time, was not irrelevant to that question and not outside the bounds of reasonableness. Certainly, I Interestingly, the judge fords no problem with Supervisor Capps' fol- lowup recommendation of a particular attorney to explore the possibility of decertification because it was no more than a direct response to a re- quest by an employee for information 2 Weisser Optical Co, 274 NLRB 961 (1985), Placke Toyota, 215 NLRB 395 (1974) 255 had Capps approached Shivar and initiated the sug- gestion of decertification as part of a strategy to undermine the Union, an entirely different situation would have been presented, one which I would have no trouble finding illegal. APPENDIX A 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 refuse to recognize and bargain collectively in good faith with Graphic Communi- cations Union, Local 241-B, Graphic Communica- tions International Union, AFL-CIO, CLC as the exclusive collective-bargaining representative of employees in the following unit: All regular and full time maintenance employ- ees, including maintenance mechanics, plant clericals, baler operator and janitor employed at our Tallahassee, Florida facility; excluding all other employees, office clerical employees, bindery and press room employees and opera- tors, professional employees, guards, and su- pervisors as defined in the Act. WE WILL NOT unilaterally change the terms and conditions of employment of our employees in the above unit without the consent of the Union or without a valid impasse in bargaining having been reached. WE WILL NOT refuse to bargain with the Union by generally repudiating any obligation to arbitrate grievances arising after the expiration of the bind- ery collective-bargaining agreement. WE WILL NOT unlawfully encourage or assist employees to circulate petitions to decertify the Union. WE WILL NOT fail and refuse to reinstate unfair labor practice strikers on their unconditional appli- cation to return to work. 256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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. WE WILL recognize and, on request, bargain with the above-named Union as the exclusive rep- resentative of employees in the maintenance unit set forth above regarding wages, hours, and other terms and conditions of employment and, if an agreement is reached , reduce it to writing and sign it. WE WILL withdraw the requirement of compul- sory use of accrued vacation leave for the 1985 Christmas shutdown and we will restore employees any loss of accrued vacation they were involuntar- ily required to take during that shutdown. WE WILL restore the maintenance unit employ- ees terms and conditions of employment in exist- ence prior to March 5, 1986, and continue them in effect until an agreement on any changes is reached with the Union or a bona fide impasse exists. WE WILL make employees whole, with interest, for any losses they suffered as a result of the unilat- eral changes in working conditions in the mainte- nance unit on and after March 5, 1986. WE WILL immediately and fully reinstate all of our maintenance unit employees who participated in the strike which began on January 23, 1986, and who were not permanently replaced as of March 5, 1986, to their former jobs or, if those positions no longer exist, to substantially equivalent positions if available, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any person hired by us on or after March 5, 1986; WE WILL make these employees whole, with inter- est, for any loss of earnings resulting from the dis- crimination against them; and we will place any re- maining former strikers on a preferential hiring list and offer them reinstatement before any other per- sons are hired or on the departure of any striker re- placements. ROSE PRINTING COMPANY, INC. APPENDIX B Vickie Barineau Jean Bartlett Danny Bloom Brad Bowman Gloria Brown Glory Brown Anna Bryant Georgia Busbee Johnny Clark Tanner Clark Pat Coriell Sammie Keys Karla LaGasse Jackie Lane John McKinnon Betty Moats Peggy Nichols B. J. Oliff Leila Pollard Lester Posey W. E. Posey W. T. Posey Ray DeGagne Wanda Duncan Richard Frauenthal Larry Grantham Charles Hildebrandt Carl Hill Zelma Hill David Hunt Annie Kelly Gary Powell Peggy Powers Mike Segler George Stephens Kim Thomas Mary Thomas Joseph Toomes Doug Wommack APPENDIX C Robert Avant Ted Kline Eduardo Soto and Peter J. Salm, Esqs., for the General Counsel. Peggy Nichols, of Tallahassee, Florida, for the Charging Party. James Blue and Mark Levitt, Esgs. (Hogg, Allen, Ryce, Norton & Blue), of Tampa, Florida, for the Respond- ent. DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge. These cases were tried at Tallahassee, Florida, 7-10 July 1986.1 The charges were filed by Graphic Communica- tions Union, Local 241-B, Graphic Communication Inter- national Union, AFL-CIO, CLC (the Union or Local 241), in Case 12-CA-11819 on 18 November; in Case 12-CA- 11912-3 on 18 February (amended 27 March and 17 and 21 April); in Case 12-CA-11958 on 19 March (amended 17 and 21 April); and in Case 12-CA-12033 on 8 May. The charge in Case 12-CA-12046 was filed by George W. Hayson, an individual (Hayson) on 15 May (amended 22 May). On 22 May, the Regional Director for Region 12 of the National Labor Relations Board (the Board), issued an order consolidating cases and a consolidated complaint based on the charges filed by the Union. Subsequently, on 26 June, an order further con- solidating cases consolidating Hayson's charges with the earlier union charges for hearing was issued along with amendments to the earlier consolidated complaint. The complaint, as amended, alleges violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (the Act), by Rose Printing Company, Inc. (Respondent or the Company). The primary issue is whether Respondent bargained with the Union in good faith with respect to a successor contract in its bindery unit and an initial contract in its maintenance unit. A finding that it did not do so creates other issues includ- ing: (a) whether a subsequent strike by Respondent's ' All dates herein are from July 1985 through June 1986 unless other- wise indicated ROSE PRINTING CO. bindery and maintenance unit employees was an unfair labor practice strike, (b) whether Respondent violated Section 8(aX3) of the Act by refusing to reinstate the strikers following an unconditional offer to return to work, (c) whether Respondent violated the Act in imple- menting its last bargaining proposal offer in the bindery unit, and (d) whether Respondent unlawfully withdrew recognition from the Union in both the bindery and maintenance units and subsequently unilaterally changed the working conditions of employees in the maintenance unit. Additional issues are presented regarding whether Respondent violated Section 8(a)(1) of the Act by spon- soring a decertification petition among its maintenance employees in March, and suggesting the circulation of an antiunion petition among bindery employees in Novem- ber. Additional 8(aX5) allegations raise issues of whether Respondent violated the Act by its unilaterally an- nounced and implemented policy requiring employees to use vacation leave rather than leave without pay during the Christmas plant shutdown and whether it refused to arbitrate a grievance regarding said policy. The com- plaint further raises an issue of whether Respondent vio- lated Section 8(a)(3) and (1) of the Act by threatening its employee Hayson and retaliating against him for dis- criminatory reasons. A final issue was presented at the hearing regarding the eligibility for reinstatement of cer- tain strikers who resigned their employment with Re- spondent during the course of the strike in order to obtain their retirement fund contributions. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the able briefs filed by the General Counsel and Re- spondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Florida corporation with an office and place of business in Tallahassee, Florida, where it is en- gaged in the publishing and binding of books. During the 12 months preceding issuance of the complaint Respond- ent in the course and conduct of its business operations derived gross revenues in excess of $500,000 and during the same period of time purchased and received at its Tallahassee, Florida facility products, goods, and materi- als valued in excess of $50,000 directly from points locat- ed outside the State of Florida. The complaint alleges, and Respondent admits, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The consolidated complaint alleges further, Respondent admits, and I also find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Overview of Uncontroverted Facts Respondent is owned and operated by the Rosenberg family. Prior to June 1985, a 50-percent interest in Re- spondent was owned by Mrs. Charlotte Rosenberg with the remaining 50 percent owned by her son Charles Rosenberg and two sisters. Charles Rosenberg, for the 1- 257 year period prior to June 1985, was the acting chief ex- ecutive officer of Respondent. In June 1985, Charles Rosenberg acquired the ownership interest of his sisters giving him a full one-half interest in the ownership of Respondent. Around the time he acquired the additional interest in ownership, Charles Rosenberg became the chief executive officer of Respondent. In its publishing and bookbinding business, Respondent operates three departments that are relevant to these pro- ceedings: the bindery department whose employees have been represented for several years by the Union,2 the maintenance department whose employees have been represented by the Union since January 1985, and the press department, whose employees are represented by Local 193-C (Local 193), of the same International union as Local 241. Discussions between Local 241 and Local 193 concerning a merger of the two unions took place in the fall of 1985 and while the members of Local 241 voted in favor of the merger, the members of Local 193 rejected the proposal. Respondent maintained collective-bargaining agree- ments with both Local 241 and Local 193, effective from 1 December 1982 to 30 November 1984. Both contracts provided for a wage reopener for the period commenc- ing 1 December 1983. As a result of negotiations at that time, and notwithstanding the fact that Respondent was losing money during the period, Respondent agreed to wage increases of approximately 45 cents for journeymen in both bargaining units. In 1984 negotiations were undertaken with both Local 241 and Local 193 for new collective-bargaining agree- ments to succeed the expiring ones. The Company was represented in these negotiations by its labor attorney, Allen Blake, and its comptroller and member of its board of directors Greg Poirier, among others. The end result of these negotiations was an extension of the collective- bargaining agreement in each unit until 30 November with no wage increases. In late 1984 the Union began organizing Respondent's maintenance employees. Subsequently following a Board- conducted election, Local 241 was certified on 23 Janu- ary 1985 as the exclusive collective -bargaining represent- ative of Respondent's maintenance employees .3 Negotia- tions for a collective-bargaining agreement with the Union covering maintenance employees began in March 1985 with Respondent again represented by its attorney, Blake. During the course of these negotiations, however, Blake was fired and a new labor attorney, James Blue, was hired. Blue attended the first maintenance unit nego- tiations on 22 April. Negotiations on the maintenance 2 The specific bindery unit in which the Union was recognized, which Respondent in its answer admits is appropriate for purposes of collective bargaining, is as follows. All employees in Respondent's bindery operation at its Tallahassee, Florida facility; excluding all other employees , guards and supervi- sors as defined in the Act 8 The specific unit for which the Union was certified is as follows. All regular full-time maintenance employees, including maintenance mechanics, plant clericals, baler operator , and janitor employed by Respondent at its Tallahassee, Florida facility; excluding all other employees, office clerical employees, bindery and pressroom employ- ees and operators, professional employees, guards, and supervisors as defined in the Act 258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unit dragged on into the fall when negotiations began again between Respondent and Local 241 regarding the bindery unit's collective-bargaining agreement and be- tween Respondent and Local 193 regarding the press de- partment unit. On 16 October around the time of the start up of ne- gotiations on the bindery's collective-bargaining agree- ment, Respondent posted a Christmas shutdown notice stating that the plant would close down for the Christ- mas period and that employees would be charged 4 or 5 days' vacation during the shutdown. It is undisputed that this announcement was made without prior notice to, or bargaining with, Local 241. The Union protested this action during their bargaining sessions in early Novem- ber. The Union took the position that employees were entitled to choose whether to take vacation leave or leave without pay during the shutdown as they had done in 1984, when, after bargaining, Respondent had agreed with the Union that employees could choose between using vacation time or time off without pay during the Christmas shutdown. Respondent, expressing uncertainty about the past practice, rejected the Union's contention and insisted employees use vacation leave during the Christmas shutdown. While the Union filed a grievance on the matter on 8 November, the grievance was not re- solved and the Union did not seek arbitration of the matter because it was told by Respondent's personnel manager, David C. Goodwin, that Respondent would not arbitrate the grievance since the shutdown would take place after the contract expired on 30 November. The Union filed a charge with the Board on this issue on 18 November (Case 12-CA-11819) after which Re- spondent on 18 December announced that the resolution of the matter would be made by the Board or, if the Board so ordered, by an arbitrator. The posted an- nouncement also stated, however, that depending on final resolution employees would either receive their va- cation pay during the shutdown or be permitted to schedule their vacations in the future. Employees were directed to advise their supervisors of their preference by 20 December. The negotiations on collective-bargaining agreements in both the bindery and maintenance units were not suc- cessful. On 17 January Respondent through its attorney Blue presented the Union with Respondent's final offer in the bindery unit and announced that it would be im- plemented at the beginning of the day shift on 20 Janu- ary. About 22 January the Union called a strike in the maintenance and bindery units. During the course of this strike and during the period of 28 February to 3 March, employee Carrie J. Rogers circulated a petition among the bindery unit employees expressing their desire that the Union no longer represent them for collective bar- gaining. Rogers delivered this petition to Respondent on 3 March. Also on 3 March employee Hayson circulated a similar petition among the bindery employees and also delivered a copy of that petition to Respondent, while forwarding the original to the Board's Regional Office in Tampa. As a result of the petitions, Respondent by let- ters to the Union dated 4 and 5 March, respectively, withdrew recognition from the Union in the bindery and maintenance units. By telegram dated 5 May, the Union made an uncon- ditional offer to return to work "all striking employees." By letter dated 6 May, Respondent acknowledged re- ceipt of the offer to return to work and stated that the replaced striking employees "are now on a preferential recall list and would be offered reinstatement consistent with the law applicable to economic strikers." It is undisputed that about 5 March after a withdrawal of recognition from the Union in the maintenance unit, Respondent changed the terms and conditions of em- ployees in that bargaining unit. B. Respondent's Alleged Intentions in the 1985 Negotiations 1. William Windham's testimony The consolidated complaint alleges that Respondent, in both the bindery and maintenance units, bargained with the Union only "with the intent of delaying the bar- gaining process and not reaching an agreement." The General Counsel predicates these allegations upon the testimony of William Windham, a former official of Re- spondent, and relies on other conduct of Respondent in- cluding its bargaining proposals during negotiations to corroborate Windham. Windham was hired by Respondent in 1983 and testi- fied he worked as plant manager and later as manufac- turing manager after he was replaced as plant manager by George Tabor in the early part of 1985.4 According to Windham, he participated in negotiations between Re- spondent and both Local 241 and Local 193 on the wage reopenings in 1983. Those negotiations concluded with a wage increase being given. Charles Rosenberg (Rosen- berg) did not personally take part in the negotiations, and subsequently made statements on several occasions in the presence of Windham, Mrs. Rosenberg, and Greg Poirier that he would get it (the wage increases) back in negotiations the following year. In 1984, still according to Windham, when the con- tract with Local 241 came up for negotiation, Rosenberg stated more than once at staff meetings or management meetings that if Respondent did not get concessions from the bindery unit he wanted them "on the street." Fur- ther, Windham testified with some vagueness that Rosen- berg indicated that Respondent could hopefully get a contract with the pressmen's union, apparently feeling that Respondent could still operate if that union did not strike. Mrs. Rosenberg and Poirier expressed concern about a strike, Windham testified, fearing that Respondent could not afford to take a strike. Windham testified that he sided with Rosenberg stating that if he did not get the concessions he needed to operate, he would rather have a strike. As a result of this internal conflict, Sheldon 4 Respondent denies that Windham ever occupied the position of plant manager, apparently basing its position in this regard on the fact that he was not empowered to engage in purchasing for Respondent While the issue on Windham's status as plant manager is largely academic , it is clear that on at least one occasion in late 1984 Windham signed a notice to employees as plant manager Moreover, evidence submitted reflects he was listed as plant manager in the minutes of a management meeting in June 1984 ROSE PRINTING CO. Rosenberg, chairman of the board of directors of Re- spondent at the time, came to Tallahassee to meet with management. He apparently was unable to resolve the dispute. However, Sheldon Rosenberg did remove Rosenberg from any labor relations authority. That this did in fact occur is indicated by a letter dated 1 Febru- ary 1985 from Respondent's attorney Blake to Greg Poirier in which Blake responded to the contention by both Unions that the 1984 agreement to extend the col- lective-bargaining agreements was conditioned on the re- moval of Rosenberg from any further involvement in labor relations with the unions. Blake conceded in his letter that oral statements were made at the bargaining table that Rosenberg would no longer be in labor rela- tions but rebutted the Union's assertion that that was a condition of agreement. In any event, the 1984 negotia- tions culminated in an extension of the old agreements with both Unions as a result of Sheldon Rosenberg di- recting that Respondent accept the Union's proposals in this regard. Windham also testified Respondent was opposed to union organization by the maintenance employees. After discussions with Rosenberg, and in an effort to thwart union selection by the maintenance employees , Windham hired two new employees in the maintenance unit prior to the January election and after the two gave him assur- ances they would not vote for the Union. In addition, Rosenberg made arrangements in early 1985 prior to the election to hire an additional cleaning crew . That effort was rejected by Mrs. Rosenberg and Poirier in a shout- ing match with Rosenberg. Windham testified he wit- nessed the affair and joined in a discussion with Poirier in an effort to convince Charles that it would be futile to put the new people in as part-time employees to vote in the upcoming election in the maintenance department. As a result the additional cleaning crew was not hired. This aspect of Windham's testimony was not denied by Rosenberg, and neither Poirier nor Mrs. Rosenberg testi- fied in this proceeding. As further evidence of Respondent's animosity toward union organization in the maintenance unit, Windham testified that Rosenberg and George Tabor, who became plant manager in the spring of 1985 , directed him in early June 1985 to lay off Albert Spivey who had been elected as president of the Union and who was a negotia- tor for the Union in the maintenance unit . Windham ac- knowledged that the layoff of Spivey was part of an overall layoff of 10 percent of the employees in each de- partment. However, Respondent laid off more than 10 percent in the approximately eight-employee mainte- nance unit in order to reach Spivey who had seniority over one other employee. Spivey resigned his employ- ment sometime after the layoff and was never recalled. He resigned his office in the Union in August. Subsequent to Spivey's resignation, the other mainte- nance employee junior to Spivey was offered recall to work but declined to return. Further, according to Windham's testimony, which is not specifically contra- dicted in this regard, there were additional hires in the maintenance department. One such hire was a detective who Windham testified was hired by Tabor and Good- win in the maintenance department. According to Wind- 259 ham, Tabor told him that the detective, who was hired in mid July and who worked through July and approxi- mately 3 weeks in August, was employed to gather evi- dence on maintenance employee Brad Bowman because Bowman was on the Union's negotiating committee. Windham related that Goodwin had confirmed to him that this was the purpose for hiring the detective. Windham further testified that following Respondent's loss of the election in the maintenance unit after Wind- ham had given assurances that such a loss was not likely, Rosenberg expressed to Windham his displeasure stating that Windham was "in trouble." Approximately 3 months later, Windham was in fact replaced as plant manager by George Tabor. Windham continued his em- ployment by Respondent, however, as production man- ager until he was discharged in November. It is undisputed that Windham was a member of the management negotiating team in bargaining negotiations with the maintenance unit through mid-July. Still ac- cording to Windham, Charles Rosenberg made state- ments to him on three or four different occasions that there would be no contract with bindery employees in 1985, and that Respondent would start negotiating with maintenance people but with no intention of reaching an agreement. Rather, Rosenberg stated he would stretch out the maintenance negotiations until the bindery and pressmen unit negotiations started in the fall. He added that there would be no bindery contract reached with the bindery unit, that they would strike, and the employ- ees would be replaced when they struck, and that Re- spondent would be rid of the Union in the maintenance and bindery departments. However, with respect to the pressmen unit and Local 193, Rosenberg stated that he would seek concessions from Local 193 but would still try to get a contract that Respondent could live with in- asmuch as he felt that Respondent could operate if the bindery went out but not if the pressmen struck. Further, according to Windham, at one of the meetings he attend- ed with management relating to the maintenance unit agreement, Windham asked Tabor what would happen if the maintenance and bindery units accepted a contract. Tabor's reply was there was no way they could accept it. At still other meetings, Tabor had stated that Re- spondent would not get a contract with the bindery and maintenance departments. 2. Other evidence of Respondent's intent As other evidence of Respondent's intent to provoke a bindery and maintenance strike, the General Counsel points to Respondent's development of a strike plan in the summer of 1985. The strike plan was admittedly de- veloped by Personnel Manager Goodwin. Goodwin's strike plan included, inter alia, a proposed erection of a fence around Respondent's premises, and a polling of su- pervisors regarding which of their employees they antici- pated would engage in a strike if one was called. In addi- tion, it is undisputed that as part of the strike plan, Wind- ham made visits to other printing facilities during the summer of 1985 to ascertain whether other concerns could handle Respondent's work in the event of a strike. 260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel also relies on the testimony of Joel Tidwell to support the proposition that Respondent intended to avoid agreement with the Union. Thus, Tid- well, the president of Local 193, testified that he had a conversation with Tabor prior to the beginning of nego- tiations between Respondent and both the bindery and pressmen units. In the conversation that took place in either Tabor's office or the board room Tabor asked if Local 193 would agree to negotiate without the presence of attorneys. Tabor added that Respondent and the bind- ery unit were so far apart that he did not think they could reach an agreement, but he felt he could reach an agreement with Local 193, because he was able to talk to them. Local 193 subsequently agreed to negotiations without attorney representation and such negotiations were undertaken. Labor attorneys for both sides were subsequently called in after 8 or 10 meetings. During the course of these negotiations, Tidwell testified, both Tabor and Goodwin made statements several times that they were so far apart with Local 241 that they would never get a contract. Further, Tidwell testified that in November during the time when merger discussions be- tween Locals 193 and 241 were taking place, Tabor in- quired of Tidwell about the merger. Tidwell replied that there was little possibility and Tabor remarked that he felt like Local 193 would be better off if they did not merge with 241 for if they did, Local 193 would have the same problems as Local 241. Tabor did not specify the "problems." While the General Counsel does not contend that Re- spondent's bargaining proposals with respect to both the bindery and maintenance unit in themselves establish an intent to avoid agreement, such proposals are relied on as circumstantially supporting the proposition that Re- spondent intended to cause the maintenance and bindery units to strike while reaching an agreement with Local 193. Concessions were sought from each union, but the extent of concessions sought from Local 241 appeared to be greater than for Local 193. Thus, Respondent pro- posed to increase employee contributions to the pension plan from 3 to 4 percent for Local 193 while contribu- tions by employees in Local 241 were proposed to be in- creased from 3 to 6 percent. No change in the manage- ment rights provision was proposed by Respondent with respect to Local 193 but with respect to Local 241 Re- spondent proposed in its management rights clause to eliminate all past practices as a basis for contract inter- pretation or application. Under Respondent's proposals, Local 193 would keep a basic workweek of 37-1/2 hours with mandatory overtime of 16 hours after 40 hours per week. But Respondent proposed to increase Local 241's workweek from 38-3/4 to 40 hours per week with man- datory overtime for the first 24 hours per week after 40 hours. Respondent proposed to reduce disability pay from 70 percent for 26 weeks to 60 percent for Local 193 but to 50 percent for Local 241. No change in sick leave was proposed by Respondent for Local 193 but Respondent proposed to eliminate sick leave for new hires for Local 241. Respondent's proposal for vacation leave for employees represented by Local 193 was capped at 30 days while leave for employees represented by Local 241 was capped at 20 days except for those al- ready receiving more than 20 days. With regard to wages, Respondent proposed a wage increase of 45 cents per hour for journeymen in the press department with proportional increases for others while no wage increase was proposed at all for Local 241. Moreover, with man- ning changes proposed by Respondent along with discre- tionary authority retained by Respondent to transfer em- ployees to lower rated jobs, some employees represented by Local 241 might suffer an actual decrease in wages. The proposal of Respondent to the maintenance unit employees largely parallels its proposal to the bindery employees. No across-the-board increase was offered in maintenance, but neither were any proposed cuts in wages. 3. Respondent's evidence Respondent's evidence with respect to its intentions in the negotiations with Local 241 was expressed largely through Rosenberg, Tabor, Goodwin, and Respondent's labor attorney, James Blue. Rosenberg testified that Re- spondent had lost money for the past several years, and as a result, Rosenberg instructed his bargaining commit- tee to seek concessions so that Respondent could reduce operating costs, reflect a profit , and maintain a status of solvency. With respect to the maintenance unit , Rosen- berg said that Respondent wanted a speedy resolution of the maintenance contract. According to Rosenberg, he did not foresee a strike in his discussions with Respond- ent's maintenance bargaining committee consisting at that time of Blake, Windham, and Tabor. That Respondent did seek an early resolution on the maintenance bargain- ing agreement is evidenced by a letter from Respondent's then attorney Blake dated 11 March 1985 to Poirier in which Blake observed that "if the Union insists on their position relative to certain reporting areas, such as over- time, call in and report pay sub-contracting and hours of work and any other areas which take away from man- agement's rights, the goal of a quick contract must [be] secondary to the preservation of the Company's flexibil- ity in running the machine shop." Rosenberg further testified that he additionally wanted a quick agreement with maintenance because he did not wish to negotiate with three units in the fall. He denied he ever stated that he wanted a strike in either the bind- ery or maintenance units. He conceded that he needed concessions and if he could not get concessions, Re- spondent would be prepared to take a strike and told h;s negotiating team for all three units that if he could not get concessions to "let them go." According to Rosen- berg, there were three management negotiations strategy sessions held in the fall prior to the expiration of the bindery and maintenance contracts . These were attended by Rosenberg, Blue, Goodwin, and Mrs. Rosenberg. The first such session took place in the early fall while the second took place in November with the third in De- cember. The latter two sessions were attended by Rosen- berg, Blue, Tabor, and Goodwin. Rosenberg said that he was encouraged at the prospects of reaching agreement by a proposal suggested by Blue referred to as "red cir- cling" which would have the net effect of allowing em- ployees in certain classifications to maintain their wages ROSE PRINTING CO. while in those classifications. Only new hires or trans- ferred employees then would be affected by the lower rates Respondent was proposing. Rosenberg said he au- thorized a red circling plan as well as a "buy back" plan on dependent care coverage for health care costs re- stricted to current employees only. Other than a demand on mandatory overtime, Rosen- berg could recall no specific concessions he sought from the maintenance unit. Still Rosenberg insisted that he wanted a quick contract with the maintenance unit. With respect to the bindery unit, Rosenberg related that Re- spondent sought a reduction in dependent coverage cost (i.e., employees paying a larger share of such coverage), mandatory overtime, and a "right to man our equip- ment." Although Rosenberg said the same items were sought from the pressmen unit, he subsequently conced- ed that there were differences in the proposals but stated he did not know exactly what they were. Nevertheless, he maintained that there was a "continuity" in the pack- ages. Rosenberg did not specifically deny Windham's testi- mony regarding Spivey's layoff. However, Tabor testi- fied that Rosenberg was not involved in the layoff deci- sion, that Spivey's presidency in the Union played no part in his selection for layoff, and that while the selec- tion of two out of the maintenance unit for layoff ex- ceeded the 10-percent goal, it was because the mainte- nance unit represented a nonchargeable cost center (i.e., costs not directly chargeable to customers), and Re- spondent felt a greater than 10-percent reduction could be accomplished there. Tabor's testimony on the point was corroborated by the testimony of Goodwin who had been employed by Respondent in late May 1985 just prior to the layoff. Regarding the hiring of a detective in the maintenance unit Goodwin and Tabor related that the purpose was to obtain evidence regarding possible thefts. Goodwin testi- fied that Windham had related to him that he suspected Bowman of stealing, a contention Windham denied on rebuttal. Neither Goodwin nor Tabor advised the detec- tive of the suspicions regarding Bowman. The detective was terminated after 3 to 4 weeks without finding evi- dence of theft by anyone. Blue testified for Respondent that he was told by Tabor that the strategy in maintenance was to get a quick contract because the Company did not want nego- tiations to drag into the fall. The offer made to the main- tenance unit reflected that strategy. However, contrary to Rosenberg, Blue related employee dependent cover- age was not a reduction sought in the maintenance unit. Blue corroborated Rosenberg regarding the strategy ses- sions held in the fall, the first being in late September and related to all three bargaining units. That meeting was attended by Tabor, Goodwin, Windham, Rosenberg, and Mrs. Rosenberg. As a result of the meeting, Blue was instructed to get concessions in the negotiations, and there was a discussion about what concessions would be proposed. However, Rosenberg did not detail each of the areas in which concessions were to be sought. Ac- cording to Blue, in mid-December it appeared that Re- spondent was not going to be able to reach an agreement with the bindery and maintenance units and therefore he 261 began to make alternative proposals. One of the propos- als in this regard was the "red circling" offer to the bind- ery unit, the effect of which was to obtain concessions from new hires without affecting the older employees. The Union found that unacceptable. In addition, the Union failed to move from its opposition to the Compa- ny's proposals on mandatory overtime, insurance, and management's rights. Blue testified Rosenberg never said anything about wanting a strike in any of the units. Rosenberg did say that if he did not get concessions, he did not care if there was a strike. Finally, Blue testified that he was aware of the Respondent's strike plan and had advised Respondent that they could not go into ne- gotiations without a strike plan. Tabor generally corroborated the testimony of Blue and Rosenberg regarding the general negotiation strate- gy. With respect to negotiations with the maintenance unit when Blake was representing Respondent, Tabor testified that in March there was a strategy session at- tended by himself, Blake, and Windham. The strategy determined was to get a quick contract with the mainte- nance unit, and to that end Respondent did not ask for concessions although they did insist on compulsory over- time, which Respondent was enforcing at that time. Asked if Windham ever questioned him about what would happen if the Union accepted the Company's pro- posals, Tabor testified only that he told Windham on one or more occasions and not necessarily in reference to the maintenance unit that it "didn't look very promising." Although Goodwin testified, he was not questioned re- garding the strategy sessions or the bindery bargaining sessions. Goodwin was instrumental in the development of Respondent's strike plan, but denied that the erection of a fence around Respondent's parking lot was related to a possible strike. Rather, according to Goodwin, the fence was put up because the parking lot was poorly lighted and women employees working on the night shift had safety concerns in view of the poor lighting. Never- theless, it is undisputed that Goodwin in a memo accom- panying a contractor's low bid on the fence installation enclosing the parking area observed, "This [the fence] is a must if we are going to control access to the shipping area of the plant. Obviously, this would also keep strik- ers an additional distance from the work area." 4. Contentions and conclusions Crucial, of course, to the General Counsel's case that Respondent refused to bargain in good faith with Local 241 with the intention of provoking a strike is the testi- mony of Windham and the circumstantial evidence that the General Counsel contends corroborates Windham. This evidence, the General Counsel argues, is found in Respondent's implementation of the strike plan in the summer of 1985, the polling of supervisors regarding em- ployee strike sympathies, the plan to use security guards with a suggested start up time of 1 October, the elimina- tion of vacations for employees after 30 November be- cause Respondent did not want striking employees to be receiving vacation pay, the erection of a fence around the plant in November, the uncontradicted testimony of Tidwell regarding Tabor's statement before negotiations 262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD even started that Respondent and Local 241 were so far apart in bindery negotiations he did not think they could reach an agreement, Tabor's caution to Tidwell about Local 193 merging with Local 241, and Respondent's preferential treatment in its proposals to the press unit as compared to the proposals presented to the bindery unit. Respondent's disposition to "pack" the maintenance unit prior to the election as admitted by Windham and Rosenberg's attempt to subcontract janitorial work, the layoff of Spivey in the maintenance unit and the hiring of a detective to find a basis for discharging maintenance unit negotiator Bowman are also said to undermine Re- spondent's present contentions regarding its good faith in the negotiations in bindery and the maintenance units. The General Counsel further argues that Rosenberg's bargaining tactics in 1984 were also designed to provoke a strike, but such intentions were thwarted by his remov- al from negotiations by Sheldon Rosenberg. Conceding that Respondent may have initially had an intention to reach a quick agreement with the maintenance unit as as- serted in Blake's letter to Poirier in March 1985, the General Counsel points out that that goal was established prior to Rosenberg's reacquisition of control of bargain- ing negotiations. Such reacquisition of control was made possible, according to the General Counsel, after Rosen- berg had bought out his sister's shares of the business. The General Counsel further contends that Rosenberg's firing of Blake warrants the inference that Blake was fired because Rosenberg wanted to know how much it would cost Respondent if the Union filed charges con- cerning Respondent's bargaining conduct when the matter went through the Board and the courts. Respondent's position is that although it bargained hard to achieve a contract with both units, it neverthe- less bargained in good faith. Windham's testimony was attacked by Respondent as being inconsistent, contradict- ed by his own prior statement given to the Board, and unworthy of belief particularly when considered in light of Windham's status as a former employee "disgruntled" by his discharge in November. According to Respond- ent, Windham took the results of the 1985 negotiations and made that Respondent's plan, when in truth Re- spondent bargained to achieve contracts albeit ones that were favorable to Respondent with the concessions sought and designed to make Respondent profitable. In this connection, Respondent emphasizes that the General Counsel has not contested the fact that Respondent had lost money 4 out of the 5 years preceding the negotia- tions involved here. Finally, Respondent contends that its conduct within the bargaining sessions reflects its intent to reach, rather than to thwart, agreements with the Union. As the General Counsel's brief points out a determina- tion of whether an employer desires to reach an agree- ment with a union must be made on the "totality of cir- cumstances" that are indicative of a mental state and not simply on the terms of contract proposals. Pittsburg-Des Moines Co. v. NLRB, 663 F.2d 956 (9th Cir. 1981). Par- ties to negotiations must bargain "in good faith" with a sincere desire to reach agreement. If an employer enters negotiations without "an open and fair mind, and a sin- cere purpose to find a basis for agreement," he cannot be said to have bargained in good faith. Globe Cotton Mills v. NLRB, 103 F.2d 91, 94 (5th Cir. 1939). But, a party to negotiations cannot be required to make a concession on any specific issue or to adopt a particular position. See Atlanta Hilton & Tower, 271 NLRB 1600 (1984). On the other hand, the submission of predictably unacceptable proposals by a party in negotiations may provide a basis for the inference that the party offering the proposals does not wish to reach an agreement. See NLRB v. A-1 King Sue Sandwiches, 732 F.2d 872, 877 (11th Cir. 1984), cert. denied 469 U.S. 1035 (1984). Nevertheless, the Board has more recently ruled that it will not sit in judg- ment on the substantative terms of bargaining proposals but rather will oversee the process of bargaining to as- certain that the parties have made a sincere effort to reach an agreement. Rescar, Inc., 274 NLRB 1, 2 (1985). In examining the totality of the conduct of Respondent in this case, one must begin with the testimony of Wind- ham. After carefully considering the demeanor of Wind- ham, the content of his testimony and its context within the case as a whole, and all of the variant factors that a trier of fact must consider in resolving credibility, I con- clude that Windham's testimony to the extent it im- pugned Respondent's intent in negotiations was based, at best, on conjecture, confusion, and faulty recall. Having been discharged by Respondent in November, Windham could not be regarded as unbiased in this case. More- over, in demeanor, I found Windham unconvincing. His testimony at times was vague as reflected by the fact that he could not provide the approximate times when Rosen- berg made the alleged damaging remarks regarding Re- spondent's intent with respect to the 1984 and 1985 nego- tiations. Moreover, Windham's inability to accurately relate the basis for the dispute between Rosenberg and Blake that resulted in Blake's discharge in the presence of Windham casts serious doubt on Wmdham's ability to accurately report other facts. This makes purely specula- tive the General Counsel's contention that Blake was fired because he was unable to provide Respondent with an estimated cost of defending Respondent on prospec- tive refusal-to-bargain charges. Contradictions between Windham's testimony and his prehearing statement to the Board also serve to under- mine Windham's veracity. Thus, in his prehearing state- ment given to the Board, Windham stated that Rosen- berg had said to the company negotiators during the 1984 negotiations that he wanted to offer the bindery local a contract that he knew they could not accept, so they would be forced to strike and he could get rid of the bindery local, the same position he attributes to Rosenberg in the 1985 negotiations. Nevertheless, in a subsequent portion of the same statement, Windham had related that Rosenberg "didn't care whether or not the bindery Local signed a contract." The General Counsel would excuse this inconsistency on the basis that Re- spondent did change its bargaining position in 1984 after steps were taken to remove any labor relations authority from Rosenberg. The General Counsel's argument has no appeal. The inconsistency remains, for Windham was not testifying regarding positions of Respondent but rather the specific position of Rosenberg. ROSE PRINTING CO. There is also a contradiction between Windham's pre- hearing statement and his testimony before the Federal district court in connection with the General Counsel's unsuccessful attempt to obtain a 10(j) injunction in this case and his testimony here. In his prehearing statement to the Board, Windham related that in the fall of 1985 he, Tabor, Blue, and Goodwin represented Respondent in negotiations. Admittedly, at the hearing on the 10(j) petition, Windham testified that he attended four or five bindery unit bargaining sessions in September and Octo- ber 1985. While he equivocated about the last date he at- tended a negotiating session, he was emphatic that he at- tended the bindery negotiations. At the hearing here, however, Windham conceded that he had not attended any bindery negotiations in 1985. He explained this con- tradiction as simply a mistake caused by his not having reviewed his notes and by the fact that the union com- mittee on the maintenance negotiations contained some of the same people that he had dealt with the preceding year in the bindery negotiations. He named no one on the maintenance negotiating committee who had been on the previous bindery negotiations other than "he be- lieved" Peggy Nichols. However, Nichols was not elect- ed president of the Union and did not begin attending maintenance negotiations until August, a time after Windham ceased participating in maintenance negotia- tions. Accordingly, Windham's explanation does not withstand scrutiny, and only serves to further undermine his credibility. Concerning the circumstantial evidence pointed out by the General Counsel to corroborate Windham's testimo- ny, Respondent's establishment of a detailed strike plan, I conclude, is not inconsistent with its bargaining position. It is clear that Respondent was negotiating for conces- sions from Local 241. Unquestionably, Respondent was willing to endure a strike if it could not get concessions. Such a position is not in and of itself unlawful. See Hamady Bros. Food Markets, 275 NLRB 1335 (1985). A realistic assessment of the likelihood of a strike in light of Respondent's attempts to negotiate significant conces- sions would support the prudence of strike preparation and the development of a strike plan. Indeed, the Union's membership voted for strike authorization in August before bindery negotiations had even commenced. Such preparation for a strike cannot indicate the Union's intent to bargain in bad faith. Under these circumstances and given Respondent's disposition early on that it would seek concessions in the 1985 agreements just as it had ini- tially determined to seek them in the 1984 negotiations, I conclude Respondent's early preparations for a strike did not reflect an intent to provoke a strike. The General Counsel asserts that Respondent's remov- al of labor relations authority from Rosenberg in 1984 confirmed Respondent's recognition that Rosenberg's in- volvement in bargaining would result in a strike. Accept- ing the contention that Rosenberg may have been diffi- cult to deal with and adamant on obtaining concessions does not dictate a conclusion that Rosenberg intended to cause a strike. And the argument that Blake was fired be- cause he was unable or unwilling to give Rosenberg an estimate of the costs of contemplated unfair labor prac- tice litigation flowing from any refusal to bargain ap- 263 pears to have no predicate in fact. Rosenberg maintained Blake was fired because of his failure to provide an esti- mate of costs regarding an arbitration matter. Windham's testimony on this point was too vague, although he was present at Blake's firing, to constitute a credible contra- diction of Rosenberg's testimony on this issue. Windham's claim that Rosenberg intended to drag out negotiations with the maintenance unit is refuted by Blake's 11 March letter to Poirier regarding the intent to reach a quick agreement. But hard and difficult bargain- ing does not preclude the existence of a desire to reach agreement. Nothing else substantiates Windham's claim and even Windham conceded in his testimony that he had no reason to believe Blake's letter was not an accu- rate statement of Respondent's goal in bargaining in the maintenance unit. Moreover, Windham admitted he could point to no specific conduct of Respondent in maintenance negotiations tending to show an intent to drag out the bargaining. Any difficulty in arranging meetings was attributable to both sides. And Respondent was not seeking concessions from the maintenance unit that would make agreement more difficult to achieve. 5 On the surface it would also appear that the Union had more to gain than Respondent by extending the mainte- nance negotiations, for by doing so, the smaller mainte- nance unit of seven or eight employees would have its strike effectiveness increased by support from the bind- ery unit employees after their contract expired in No- vember. The General Counsel asserts Respondent's failure to submit a complete contract proposal for maintenance to the Union substantiates the argument that Respondent in- tended to drag out negotiations. Tabor conceded that there had been no complete proposal submitted by Re- spondent to the maintenance unit prior to October.6 Thereafter, it appears that the maintenance bargaining took a back seat to the bindery unit bargaining. The Union simply did not "push" independent maintenance bargaining. There is no evidence the Union even asked for a complete proposal. Under these circumstances, and because it is not clear that the absence of any "complete" company proposal constituted an obstacle to agreement, I can attach no evidentiary significance to the failure of Respondent to submit a complete proposal. There is also evidence that Respondent's conduct at the bargaining table was inconsistent with a desire to avoid agreement in the bindery unit. While Respondent did seek concessions in the bindery negotiations in the course of bargaining, it softened its position on the impact of those concessions. Thus, with respect to insur- ance coverage for dependents of employees, Respondent initially sought to completely eliminate such coverage at 5 The fact that Respondent was not seeking significant concessions in the maintenance negotiations undermines Windham 's testimony , vague as to time, that Tabor once said in meetings regarding maintenance negotia- tions that there was no way maintenance people could accept Respond- ent's contract Accordingly, I do not credit Windham's testimony in this regard 6 On the other hand, Blue's bargaining notes of the 9 July maintenance bargaining suggest that the Union had all of management 's proposals This apparent contradiction of Tabor's testimony is not explained on the record 264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD its expense, but subsequently offered to pay current em- ployees an hourly rate toward such coverage. Further, a major change in position involved the red circling pro- posal, which was a departure from Respondent's propos- al regarding a reduction in wages for bindery employees. Rather, the plan allowed current employees to maintain their wages and personal premiums with cost reductions to be imposed only on new employees. Although the General Counsel contends the benefits of red circling were illusory because Respondent retained the right to make job assignments that could affect the rates of cur- rent employees, the proposal nevertheless has to be re- garded as a material step toward agreement. Respondent also upgraded its proposals with regard to reporting pay, sick leave, disability pay, overtime, and mandatory over- time. These actions and proposals, I conclude, serve to show the absence of an intent of Respondent to force a strike by Local 241. The evidence reveals, as the General Counsel con- tends, that there were differences in the proposals sub- mitted by Respondent to Locals 241 and 193. Thus, on pensions prior employer contributions in both units had been 6 percent of wages with employees contributing 3 percent. In both units Respondent had proposed to re- verse those rates, and maintained that proposal for Local 241 while ultimately agreeing with Local 193 for a 4-per- cent employee contribution. Other differences between what was proposed by Respondent to Local 241 and what it and Local 193 agreed to can be found in the management rights provision, the overtime and work- week provisions, disability pay, sick leave, vacation leave, and, as already related, wage rates. To be sure, these comparisons do suggest a "preference" accorded to Local 193, which tends to support the General Counsel's argument that Respondent intended to avoid agreement with Local 241 while reaching agreement with Local 193. However, it is not clear that the apparently better terms achieved by Local 193 were not a genuine product of the collective-bargaining process. The record reveals that Local 193 did make some concessions sought by Re- spondent that Local 241 was unwilling to make. Thus, Local 193 agreed to a lower starting rate for new em- ployees, mandatory overtime, a lower employer pension contribution than it previously enjoyed, a lower percent- age rate on disability pay, employee pick-up of depend- ent insurance coverage at essentially the same 35-cent- per-hour rate proposed to Local 241, and the elimination of vision care. On the other hand, based on Blue's un- contradicted and otherwise credible testimony Local 241 refused to accept any form of mandatory overtime, or any change in the employee pension contribution rate. It further refused to accept Respondent's proposal on de- pendent insurance coverage, and it did not offer a coun- terproposal on the point except to a very limited and predictably unacceptable extent. Under these circum- stances, and keeping in mind that negotiations between Local 193 and Respondent continued after Local 241's strike began, I am unable to, and do not, attach any sig- nificance to the difference in terms reached between Re- spondent and Local 193 and those offered Local 241. I find that such differences do not evidence bad-faith bar- gaining on Respondent's part in its negotiations with Local 241. The fact that the agreement with Local 193 was reached after Local 241 went on strike also dispels the existence of a plan by Respondent, as urged by the Gen- eral Counsel based on Windham's testimony, to reach agreement with Local 193 while provoking a strike by Local 241. If there had been such a plan, its effectuation could be assured only if agreement with Local 193 was reached before Local 241's strike. Although Respondent and Local 193 had initially extended their agreement after 30 November, Respondent on 7 January advised Local 193 it was terminating the agreement as of 6 Feb- ruary because that Local had rejected Respondent's final offer. The new agreement with Local 193 was apparent- ly reached just prior to 6 February and was made effec- tive from 7 February. Therefore, both before and after Local 241 went on strike, there was a period when Re- spondent could not assure itself that it would not also be struck by Local 193. Another element supporting Respondent's contention that it did not intend to provoke a strike by Local 241 is Rosenberg's letter to bindery employees dated 17 Janu- ary. In that letter, Rosenberg explained that Respondent had two goals in negotiation, to increase efficiency at re- duced operation costs and to do this with minimum impact on current employees. He further explained Re- spondent's proposals in the primary areas of concern and related that Respondent's position was dictated by its prior loss of money. He urged the employees to review Respondent's proposal, give it "serious consideration," and let their union representatives know if they found it unacceptable. The letter is admittedly self-serving, but if Respondent desired to avoid agreement with the Union altogether as opposed to an agreement favorable to Re- spondent, the letter would not likely have been written. The other evidence relied on by the General Counsel occurring more than 6 months prior to the filing of the first charge and bearing on Respondent's attempt to "pack" the maintenance unit is, I find, immaterial. Ac- cepting as true Charles Rosenberg's efforts to pack the maintenance unit prior to the election, the undisputed fact remains that following the election Respondent made no attempts procedurally to delay the Union's cer- tification or the commencement of bargaining. Instead, as Blake's letter indicates, Respondent sought to reach a "quick agreement" with the Union. With respect to Spivey's layoff, I find Windham's testi- mony incredible when weighed against the testimony of Tabor whose manner of testifying was straightforward and generally unequivocal. I find Tabor's explanation, supported by Goodwin, of the circumstances of Spivey's layoff plausible and credible. While the layoff in mainte- nance exceeded 10 percent, Tabor's testimony that the layoff in the prepress department also exceeded the 10- percent figure was not contradicted. That Respondent had a 20-percent drop in sales in June was not disputed. A corresponding 10-percent layoff under these circum- stances does not appear unreasonable. Moreover, the re- duction of two people in maintenance appears to have been justified because there is no showing the reduction ROSE PRINTING CO. had an adverse impact on production. Further, if Re- spondent's motivation had been to rid itself of a union of- ficer, a layoff at best could only be a temporary measure. The record reflects that the junior maintenance employ- ee laid off with Spivey was subsequently offered a recall to work thus warranting the inference that Spivey would have received that recall offer had he not in the mean- time resigned . Equally credible was Tabor's testimony, supported by Goodwin, that they did not know which employees would be affected until after the number from each unit to be laid off was ascertained. Tabor's testimo- ny that Spivey's union office played no part in the deci- sion regarding his layoff, I found convincing, as well as his assertion that Rosenberg was not involved in the layoff decision. Contrary to the General Counsel's arguments, I am unable to attach material significance to the comments attributed to Tabor by Tidwell, which Tabor failed to contradict. Tabor's remark to Tidwell that Respondent and Local 241 were so far apart he did not think they could reach agreement, even before negotiations with Local 241 had started, appears to be an expression of opinion not offered as a statement of fact. Moreover, Tabor had explained his remark by saying he felt better able to talk with Local 193. Indeed, Tabor was willing to negotiate with Local 193 without attorney participa- tion. Similarily, Tabor's remarks to Tidwell regarding the merger of the two unions impressed me as innocuous and far short of a "successful attempt to prevent a merger of the two unions" argued by the General Coun- sel. Tabor's observation that if the two unions merged Local 193 would have Local 241's problems would appear to be nothing more than a vague offhand remark to a union officer that can in no way be regarded as an attempt to preclude the merger. Without Windham's testimony, which I have refused to credit, I find little to sustain any conclusion that Re- spondent intended to avoid agreement in the bindery or maintenance negotiations. Respondent's concession bar- gaining was obviously very hard bargaining and Re- spondent intended it to be so. However, overall examina- tion of Respondent's proposals and counterproposals, considered in light of the Union's responses or lack of re- sponse, does not reflect that Respondent was making an insincere effort to reach agreement. Accordingly, I find and conclude that the General Counsel has failed to es- tablish by a preponderance of the credible evidence that Respondent intended to delay the bargaining process and not reach agreement with Local 241 in either the bindery or maintenance units. I therefore find Respondent did not violate Section 8(a)(5) of the Act in this regard. C. Additional Allegations Concerning Respondent's Bad-Faith Bargaining 1. Unilateral changes in the bindery unit The complaint, as amended, alleges that Respondent about 20 January implemented its last bargaining offer to the Union in the bindery unit and changed the terms and conditions of bindery unit employees in the specified re- spects. That Respondent did implement its last bindery proposal is not disputed. A comparison of Respondent's 265 last proposal with the expired agreement between Re- spondent and the Union confirms, and Respondent does not dispute, the changes specified in the complaint.' The General Counsel does not contest the existence of an impasse in bargaining at the time of Respondent's im- plementation of its proposal. However, the argument is made that the impasse was the product of Respondent's bad-faith bargaining and therefore not reached in good faith. I have concluded above that Respondent's overall bargaining on the contractual issues was done in good faith. I therefore conclude that the impasse reached was a legitimate one, and that Respondent was entitled to im- plement its last proposal. NLRB v. Katz, 369 U.S. 736, 745 (1962). Accordingly, I find no violation of Section 8(a)(5) in Respondent's 20 January changes in the bind- ery unit. 2. Unilateral imposition of compulsory employee use of vacation time for Christmas shutdown The consolidated complaint alleges that Respondent, without prior bargaining with the Union, announced to employees on 16 October that employees would be charged any accumulated vacation time for the plant's Christmas shutdown rather than being granted leave without pay. The facts on the issue are not in significant dispute. On 16 October, Respondent posted a notice to employees stating that the plant would be closed during the Christmas holiday period and that employees would be charged any accumulated vacation time up to 5 days for the shutdown period. Employees with less than 5 days of accumulated vacation leave were to be charged with whatever vacation days they had accrued and not paid for any remaining days during the shutdown period. Local 241 was not advised of this announcement before- hand and there had been no bargaining on the subject. Respondent had undergone one prior Christmas shut- down in 1984. In August 1984 Respondent had an- nounced the shutdown, and, as in the 1985 announce- ment, had stated employees would be required to use their accumulated vacations during the shutdown, which was for a 4-workday period. On that occasion, however, the Union persuaded Respondent to allow employees to voluntarily use vacation time during the shutdown rather than taking it compulsory. During a 1 November negoti- ating session Local 241 protested Respondent's latest re- quirement of vacation use during the shutdown claiming it was not in accord with the practice the preceding year. Respondent's negotiators, Blue, Tabor, and Good- win, who were not employed by Respondent the preced- ing year, stated they would have to check it out. Subse- quently, however, during a bargaining session on 6 No- vember, Respondent reasserted its intention to charge employees vacation time during the shutdowns but pro- 7 Such changes related to call-in pay, funeral leave, health and welfare provisions, hours of work and overtime, holidays, seniority, vacations, pension plan, wage scale, and manning While the General Counsel in his brief alluded to a change in the provision on jury duty, a comparison of Respondent's offer with the prior contract fails to disclose any change s Blue in his testimony conceded that Respondent's negotiators had checked with Windham who reported that employee use of vacations during the 1984 shutdown had been voluntary to his recollection How- Continued 266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD posed that for the 1986 Christmas shutdown Respondent would be willing to apply three 1986 holidays to the shutdown with any remaining shutdown time to be charged to employees' accrued vacations. Apparently, the Union neither accepted nor rejected the proposal. At the 7 November negotiation meeting, Respondent stated its final position on the matter in the absence of any counterproposal from the Union. That position was that vacation time would be charged to employees during the shutdown. On 8 November the Union filed a grievance on Respondent's "Forced use of vacation time at Christmas," and requested as a remedy that vacation use be voluntary as in the past. The grievance was denied by Respondent. Peggy Powers, the Union's bind- ery head steward, testified that Goodwin stated that the Union would not be able to take the grievance to arbitra- tion because the shutdown would occur after the con- tract expired. In view of that statement, Powers said the Union did not seek arbitration. It did file the charge in Case 12-CA-11819 complaining of Respondent's "unilat- eral change." As a result, Respondent on 18 December announced that the issue on use of accrued vacation pay during the shutdown had not been resolved and stated that if any employee did not wish to use their accrued vacation during the shutdown they were to let their su- pervisors know. The announcement further stated that depending on final resolution "by the Labor Board and if the Labor Board so orders, by an arbitrator," employees would either receive their vacation pay or be permitted to schedule their vacation in the future. a. Contentions The General Counsel argues that the requirement of use of accrued vacation time constituted a change in working conditions about which Respondent was obli- gated to bargain citing Mountaineer Excavating Co., 241 NLRB 414 (1979), enfd. 618 F.2d 102 (4th Cir. 1980), cert. denied 449 U.S. 835 (1980). Respondent's subse- quent discussions in negotiations with the Union on this subject did not "cure" its prior unilateral action because such discussions reflected no real willingness to reconsid- er its action. Thus, the unilateral action remained a viola- tion of Section 8(a)(5). The General Counsel further argues that because employee rights to vacation time grew out of the collective-bargaining agreement the grievance filed by the Union was arguably grounded in the contract, and because Respondent announced its de- cision on the vacation use within the contract period and the grievance was filed by the Union during that period Respondent, under Nolde Brothers, Inc. v. Local 358 Bakery & Confectionary Workers, 430 U.S. 243 (1977), had a duty to arbitrate the grievance. Respondent's brief argues that there was negotiation with the Union on the involuntary vacation use and that after an impasse was reached it was free to implement its preimpasse offer to the union. In this position Respond- ent relies on the testimony of union negotiator and stew- ever, Blue testified that because Windham had not made the final deci- sion on the subject and because Blue was uncertain about the matter, Re- spondent maintained its position on the involuntary use of vacation for the 1985 shutdown and Peggy Powers who answered affirmatively when asked on cross-examination whether the Company and Union had bargained concerning the Christmas shut- down for 1985. Moreover, Respondent asserts that as a result of the negotiations and in order to keep the issue from becoming moot, it preserved the position of the parties by its 18 December announcement regarding the shutdown and vacation use. With respect to the failure to arbitrate the issue, Respondent contends the Union never formally requested arbitration and thus waived its right to arbitration. Further, Respondent asserts that be- cause the Union's grievance involved a dispute arising after the contract's expiration date (i.e., the Christmas shutdown did not take place until after the 30 November contract expiration, the dispute could not be arbitrable under the expired contract. In this respect, Respondent would distinguish the instant case from the facts in Amer- ican Sink Top & Cabinet Co., 242 NLRB 408 (1979), re- ferred to at the hearing by the General Counsel. b. Conclusions In agreement with the General Counsel's argument, I conclude the scheduling of employee vacations was a term and condition of employment. Vacations were pro- vided for by the collective-bargaining agreement, and only in the case of vacations in excess of 2 weeks did Respondent reserve the right to designate when the em- ployee could schedule the vacation (G.C. Exh. 2, p. 9). Thus, Respondent's announcement of 16 October was not specifically authorized by the bargaining agreement, and Respondent therefore had a duty to bargain with the Union on the matter. It had not done so prior to the an- nouncement. Notwithstanding Powers' testimony, which I view only as a concession that the parties discussed the Christmas shutdown during negotiations, there was no change of position by either side on the point. While Re- spondent made a counterproposal regarding the handling of vacations during the 1986 Christmas shutdown, it made no similar proposal with respect to the 1985 shut- down. Respondent failed to deviate from its initial posi- tion even after admittedly ascertaining that its position was probably contrary to what had been done during the 1984 Christmas shutdown. Respondent advanced no par- ticular reason or explanation for its position and there was no explanation of why adhering to the plan utilized in 1984 as urged by the Union was unacceptable. Because Respondent's announcement did constitute a departure from what had been done the preceding year one can only conclude that the purpose of Respondent's action was to insure employee use of as much vacation time as possible in order to preclude the possibility of paying accrued vacation to employees during any subse- quent strike. After all, in his strike plan memo, Goodwin had observed, "Rose does not want striking employees to be receiving vacation pay." There was, I conclude, no true bargaining on the subject by Respondent, only a re- affirmation of the position it had already announced without any expression of justification. There was thus no true impasse. Under these circumstances and even though the Union had proffered no counterproposal to the use of vacation time during the shutdown relying in- ROSE PRINTING CO. 267 stead on past practice to substantiate its position, I find Respondent in its "discussions" with the Union did not "cure" its initial act of bad faith in its unilateral action. I find therefore Respondent violated Section 8(a)(5) of the Act in this regard as alleged. I find no merit in Respondent's contention that its re- fusal to arbitrate the grievance on the vacation pay during the shutdown was warranted because the Union had not formally requested arbitration. There is no dis- pute that Goodwin had stated that Respondent would not arbitrate the grievance because of the expiration of the bargaining agreement prior to the implementation of Respondent's plan. The law does not require the per- formance of a useless act and clearly a subsequent formal request to arbitrate would have been denied on the same grounds announced by Goodwin and argued presently in this case. Respondent's defense that there was no obligation to arbitrate because since the implementation of its proposal would take place beyond the contract expiration date re- quires examination of the arbitration provision itself. That provision, article 16, section 1, is rather broad and makes arbitration available "should a difference arise be- tween the Employer and the Union or any of the em- ployees as to the meaning of and application of the pro- visions of this Agreement .. .." Because the contract specifically provided for vacations for employees, with Respondent reserving the right to schedule those vaca- tion days only in excess of 2 weeks, it appears that the Union's grievance is arguably bottomed on the contract. In addition, there appears to be no evidence in the case from which I could conclude that the parties had not in- tended the arbitration provision not to end with the con- tract's term. In this respect then, I find American Sink Top, supra, and Digmor Equipment & Engineering Co., 261 NLRB 1175 (1982), controlling. In the former case, the Board held that where parties to a collective-bargain- ing agreement had agreed therein to grievance and arbi- tration procedures, the parties' duty to arbitrate survived the termination of the contract where the dispute arising subsequent to the contract termination date was one that concerned an obligation arguably created by the expired contract. The latter case applied American Sink Top to find unlawful an employer's refusals to arbitrate a griev- ance filed after the bargaining agreement expired con- cerning the postcontract discharge of an employee for conduct occurring before the contract expired. I can per- ceive no basis for the distinction Respondent would draw between the two cited cases and the instant one based on the fact that Respondent's announced compul- sory use of vacation time was not to take effect until after the contract's expiration date. The dispute arose during the contract term and arguably involves rights created by the contract even though Respondent's plan was not to be implemented until after the contract ex- pired. Clearly the right to accrued vacation survived the termination of the bargaining agreement, and the dispute concerning the involuntary scheduling of that vacation arose during the term of the contract. Not having been resolved by good-faith bargaining to impasse, as I have found above, the dispute was fully subject to the griev- ance procedure including arbitration. See Georgia Kraft Co., 258 NLRB 908, 922 (1981). Respondent's refusal to arbitrate the grievances, I find, constituted a breach of its bargaining obligation and a violation of Section 8(a)(5) as alleged. 3. Withdrawal of union recognition in maintenance unit and imposition of changes a. The General Counsel's evidence The consolidated complaint, as amended, alleges that Respondent through Personnel Manager Goodwin in February and March unlawfully directed employees to initiate and circulate a petition among its maintenance employees to decertify the Union as their collective-bar- gaining representative, and on 5 March unlawfully with- drew recognition from the Union in that unit. To estab- lish these complaint allegations, the General Counsel relies solely on the testimony of George Hayson, an elec- trician employed in the maintenance unit on 18 Septem- ber. Hayson, who had sustained a back injury on 9 April resulting in his receipt of workmen's compensation and an extensive absence from work beginning 28 April and continuing through the hearing, testified in great detail about the involvement of Respondent's representatives in Hayson's preparation and circulation of a petition among the maintenance employees rejecting the Union as their collective-bargaining representative. Hayson had been employed by Respondent on 18 September, had never joined the Union, and had not participated in the strike that began in January. Hayson testified that in February, Goodwin approached Hayson in the plant and asked Hayson to do him a favor. He then asked Hayson to come to his office where they could talk in private. On the way to Goodwin's office they passed the office of Plant Manager Tabor and Goodwin remarked to Tabor as he passed that they were going to "make the call." In Goodwin's office, Goodwin said he wanted Hayson to make one phone call and explained that Respondent could not give the maintenance employees any increase in benefits without having the Union decertified because Respondent was legally bound to negotiate with the strikers. Goodwin then asked Hayson to call the "com- pany's attorney," and produced a business card of an Or- lando, Florida attorney saying the attorney would pro- vide him with a word-for-word description of how to file a decertification petition.9 Hayson inquired why Goodwin could not do "this" and Goodwin replied he was a member of management. When Hayson responded that he was not a member of the Union, Goodwin re- marked that Hayson was eligible to be in the Union. Hayson picked up the phone and dialed the number un- successfully. Goodwin then dialed the number for Hayson and handed him the phone. Hayson learned that Brown was out but would be back later that afternoon. Hayson said he would call back and thereupon left Goodwin's office. 9 Hayson could not recall the name of the attorney supplied by Good- win Based on the testimony of Dorothy Greene, an associate attorney in the firm of Richson and Brown, the attorney who Hayson had attempted to call was Jim Brown, a partner in the firm 268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It appears that Hayson made no additional attempt to reach Brown that day. The following day Goodwin in- quired of Hayson whether he had called Brown back. Hayson replied he had become preoccupied and had not called back. Goodwin stated it was a priority matter that had to be taken care of and again took Hayson to Good- win's office, again passing Tabor and again telling him they were going to make "the call." Hayson did not have Brown's business card previously given him by Goodwin so Goodwin again supplied Hayson the phone number. Further, Goodwin placed the call for Hayson, and gave him the phone. However, again Brown was not in. On following days Goodwin made repeated inquiries of Hayson about calling the attorney, but Hayson "stalled" him. On 3 March after lunch Hayson was ap- proached by Goodwin with Hayson's supervisor, Al Pat- terson. Goodwin told Hayson to leave his tools and come to Goodwin's office explaining that they had to make the call that day and that Tabor had sent Goodwin to get him. Goodwin and Hayson passed Tabor in the hallway and Tabor asked if they were going to take care of "this." Goodwin said they were and Tabor noted that they might need Ethel Friend, executive secretary to Rosenberg, Tabor, and Goodwin. Goodwin summoned Friend and she and Hayson sat in Goodwin's office while Goodwin went to confer with Tabor. Tabor re- turned, dialed Brown's number for Hayson, and handed him the phone instructing him to get a word-for-word description of what to do repeating it aloud so Hayson and Friend could both take notes on what had to be done. This time Hayson talked to attorney Dorothy Greene who told him how to file a decertification peti- tion, what the wording had to be, the percentage of people needed to support the petition, and where to file the petition. Further, Greene had said that the petition had to be notarized in the presence of all who signed it. After the call was completed a dispute arose whether Friend, a notary public, would go out into the plant to watch the individual employees sign the petition. Good- win summoned Tabor into the office, and Tabor stated that Friend would not go into the plant adding that she could notarize the petition after Hayson returned with the signatures . Goodwin noted that the bindery peti- tion10 he had received that morning was not notarized, and he suggested using the bindery petition language, which he secured from a filing cabinet. Hayson then copied the bindery language on his own petition. He thereafter set about getting signatures of the maintenance employees but not before Goodwin gave him instructions as to exactly who was in the maintenance unit and argu- ments to be used to encourage employees to sign the pe- tition. Thus, Goodwin told Hayson to talk to each main- tenance employee privately, and when Hayson expressed concern that the employees might fear a reduction in benefits if they signed in light of the reduction of benefits earlier in the bindery department, Goodwin told Hayson not to use Goodwin's name but assure them that signing io As will be detailed infra, Goodwin in the morning of the same day received a petition from the bindery employees saying they no longer wanted the Union to be their collective-bargaining representative the petition would not affect their benefits package. Hayson asked what to do about the "hard sales" and Goodwin directed Hayson to tell them that if they did not sign the petition the strikers would be back and they would be out of work. It took Hayson about 30 minutes to secure the signa- tures of the five other working maintenance employees. He returned the petition to Goodwin and Friend nota- rized it. Goodwin then made copies and directed that they put a "disclosure" statement on the bottom of the petition saying Hayson had given the petition to Good- win. Hayson hesitated asking what would happen if he did not. Goodwin replied "something to the effect" that he felt a printing house in Quincy, Florida, was hiring."I It is undisputed that Hayson thereupon wrote on the copy, "Given to David Goodwin on March 3rd, 1986 by George W. Hayson." Goodwin supplied a stamped enve- lope to Hayson for mailing the petition. Hayson ad- dressed the envelope to the Board's Region 12, using the address supplied by Greene, and mailed the petition. Hayson subsequently received a call from a staff member of the Regional Office who related the petition could not be processed in the form submitted and ad- vised Hayson that a completed and correct form (Form NLRB-502) would be sent to him for signature. 12 Hayson later received the petition but did not execute it or return it to the Regional Office. On several later occasions, Goodwin asked Hayson if he had heard from the original petition, and Hayson an- swered that he had not. At one time Goodwin asked if he was sure he had sent the original petition and Hayson replied that he had. Goodwin remarked that Hayson better have because they were counting on it. Hayson subsequently reported to Goodwin and Tabor that the original petition had not been accepted by the Board. Tabor responded that he should not worry about it, that Respondent's attorney was taking care of the matter, but added that it would not hurt to sign the peti- tion and send it back anyway. Several times thereafter Goodwin inquired whether he had returned the correct petition to the Labor Board. It is undisputed that Respondent by letter to the Union dated 5 March withdrew recognition from the Union in the maintenance unit based on Hayson's petition. There is no contention by the General Counsel that the em- ployees signing the petition did not constitute a majority of the maintenance employees. It is further undisputed and the complaint alleges that about 5 March Respond- ent instituted changes affecting the maintenance unit em- ployees including the elimination of double time pay for Sunday work, the elimination of an eyeglass program, an increase in employee contributions to insurance cover- age, a reduction in minimum "call back" pay, and the in- stitution of changes in sick leave and vacations. 11 This statement attributed to Goodwin is also alleged in the com- plaint as an unlawful threat of discharge in violation of Sec. 8(a)(l) of the Act 12 It is clear that Hayson's petition was inadequate under the require- ments for decertification petitions set forth in Sec. 102 61 of the Board's Rules and Regulations ROSE PRINTING CO. b. Respondent's evidence Six witnesses were arrayed against various aspects of Hayson's testimony by Respondent . First, Tabor specifi- cally denied any involvement in Hayson's petition and even any knowledge of Hayson's intent to circulate one. He denied being told Hayson was going to make a "call" regarding decertification information , denied that he dis- cussed Friend's notarization of Hayson's petition, and denied that he had ever instructed Goodwin to summon Hayson to make any phone calls regarding decertifica- tion. Similarly, Goodwin denied the conduct attributed to him by Hayson. Thus, Goodwin testified that Hayson initiated discussions with Goodwin about getting rid of the Union in early January and then on two occasions after the strike started . The last occasion was in mid-Feb- ruary when Hayson also complained that he and other maintenance employees were sick of having to go out and change employees' flat tires during the strike. Hayson specifically asked if there was something em- ployees could do to get rid of these people . Goodwin said he would check in to it and thereafter supplied Hayson with the phone number of attorney Jim Brown. The next time the matter came up was on 3 March during lunch when Hayson saw Goodwin in the plant and asked if he could use Goodwin's telephone. Good- win replied affirmatively . Later, after Goodwin returned to his office Hayson came in and initiated the call. Only then did Goodwin realize who Hayson was calling. Goodwin then left the office to call Friend in. After the call was completed, Hayson told Goodwin he had the language for a decertification petition but would need it notarized. Thereafter, Friend and Hayson left Goodwin's office. Goodwin denied that he discussed the notarization process. He further denied Tabor was even aware of what was going on. He specifically denied showing Hayson the bindery petition , and when Hayson brought the maintenance petition in and said it had to be nota- rized, Goodwin got Friend to do it. Goodwin also denied asking Hayson to write anything on the copy re- tained by Goodwin and likewise denied any threatening reference to Hayson about job openings in Quincy. Friend testified she was called into Goodwin 's office on 3 March after Hayson was already on the phone. She said she did not take any notes but after Hayson com- pleted his call she discussed with Hayson her notarizing a petition. She left the office when Hayson left, and she testified there was no discussion regarding the names of unit employees between Hayson and Goodwin when she was present. She also denied that Goodwin had shown Hayson a copy of the bindery petition . Finally, when she subsequently came back to Goodwin's office to notarize Hayson's petition, nothing was said about Hayson sign- ing the petition as being given to Goodwin and she cor- roborated Goodwin's denial of any threatening reference to available jobs in Quincy. Al Patterson, maintenance engineer and Hayson's su- pervisor, in his testimony denied ever being present during any discussions between Goodwin on the Union and denied seeing them leave the plant floor to go to Goodwin's office, thereby implicitly corroborating 269 Goodwin's testimony that Goodwin did not "get" Hayson to make the call on 3 March. Attorney Dorothy Greene testified that on 3 March she had returned Hayson's calls to Jim Brown at Brown's request. Her testimony that she contacted Hayson that morning was supported by telephone bills from her office. She testified that Hayson discussed de- certifying the Union with her briefly but indicated he had wanted to call her back after lunch. He did so and at that time she further explained to him the information re- garding the filing of a decertification petition as set out in Section 102.60 of the Board's Rules. Finally, to contradict Hayson's contention that he had not initiated the decertification discussions with Good- win, Respondent presented maintenance employee Mike King who testified that on four or five occasions prior to Hayson's circulation of the decertification petition Hayson had talked about getting up such a petition to get the Union out of the Company . Hayson never men- tioned anyone in management, and specifically Goodwin, supporting or promoting such a move . After the petition was signed by the maintenance employees and their ben- efits were subsequently cut, the maintenance employees were angry with Hayson, and, according to King, Hayson was "doing good" just to get the other employ- ees to talk to him . King further testified that Hayson cir- culated another petition saying that by signing the peti- tion the benefits would be restored. C. Conclusion From the foregoing it is apparent that Hayson's testi- mony cannot be reconciled with that of Respondent's witnesses. There is little room for misinterpretation or misunderstanding between the versions of the facts relat- ed by each side. A credibility resolution is therefore ne- cessitated and if Hayson is credited, it must be concluded that Respondent flagrantly violated the Act. Demeanor is normally a significant consideration in resolving credi- bility. In assessing credibility here , one is compelled to initially note that Hayson was clearly an uneasy witness. Such uneasiness, however , could well be due to a back injury for which he was receiving treatment and which caused him to express some discomfort while testifying. The injury served to mask any discomfort with the con- tent of his testimony and made less reliable the percep- tion of deception . On the whole, however, I found Hayson no more convincing in demeanor than Respond- ent's witnesses, Goodwin, Tabor, Friend, and Patterson. In assessing Hayson's testimony in light of all the record evidence, one must first start from the premise that he was an employee of Respondent at the time of the hearing, albeit absent due to his back injury, and that his employee status put him at risk as a result of his testi- mony adverse to Respondent . This factor tends to sup- port his credibility. (See, e.g., Pittsburgh Press Co., 252 NLRB 500, 504 (1980); Georgia Rug Mill, 131 NLRB 1304, fn. 2 (1961).) On the other hand, Hayson had a clear and substantial motive for testifying against Re- spondent, for, based on the uncontradicted and credible testimony of Mike King, the other maintenance employ- ees were angry with Hayson for circulation of the peti- 270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion that enabled Respondent ultimately to cut their ben- efits. Hayson's testimony herein would serve to restore the benefits both to himself and the other maintenance employees and assuage their anger. Accordingly, Hayson can in no respect be considered as disinterested , and his testimony must be weighed with this in mind. Greene's testimony provides the initial contradiction of Hayson concerning the events of 3 March. Not only did Greene impress me as more credible than Hayson, she had no monetary or job interests in the outcome of the proceeding and was less likely to be biased. Moreover, her testimony was substantiated by her office telephone bills. And, finally, Hayson did not specifically deny Greene's testimony that on the morning of 3 March he told her he would call her back later in the day. Hayson simply professed a lack of recall on this point. Such lack of recall was uncharacteristic for him in light of his other detailed testimony. Crediting Greene's testimony, I must conclude that Hayson's testimony about Goodwin coming to get him and taking him to the office after lunch on 3 March is improbable and it is more likely that Hayson, as Goodwin contends, approached Goodwin during lunch that day requesting use of Goodwin's phone. Accordingly, I do not credit Hayson on this point, and find Goodwin's contrary testimony to be more credible. Moreover, based on King's credible testimony that Hayson on several occasions, without reference to Goodwin, had talked to King about getting up a petition against the Union, I find reasonable Goodwin's claim that Hayson had originally broached the idea of getting rid of the Union to Goodwin. I therefore credit Good- win over Hayson on this point also and find that Good- win's supplying of the name and number of attorney Brown was in response to Hayson's inquiries. Such action by Goodwin under these circumstances did not in itself constitute unlawful assistance in the decertification process. See Amer-Cal Industries, 274 NLRB 1046 (1985). There are other portions of Hayson's testimony that cannot be so easily discredited. His contention that he copied the bindery petition shown to him by Goodwin while contradicted by Goodwin and Friend appears to be supported by the fact that the language on the two petitions is identical. It is true that the petition language was short and simple stating: "We the undersigned em- ployees of Rose Printing, no longer wish to be represent- ed by G.C.I.U., Local 241-B for the purpose of collec- tive bargaining." Nevertheless, chance duplication by un- sophisticated employees would appear to be unlikely. However, Hayson in what appears to be a contradiction of his own claim about the source of the language con- ceded that Greene had given him "the actual wording of how it [the petition] had to be." Greene confirmed that she had given Hayson "basically the contents" of a peti- tion including an allegation that the employees "no longer wished to be represented by the particular union." In view of this, I conclude that the identical language on the petitions is not conclusive and find more convincing the denials of Goodwin and Friend that the bindery peti- tion was shown to Hayson. On the other hand, I do be- lieve that Goodwin told Hayson that the bindery petition was not notarized. Otherwise, Hayson had no way of knowing that undisputed fact. Further, a canvass of the record discloses no specific denial by Goodwin that he told Hayson this. I also find convincing the mutually corroborative testi- mony of Goodwin, Friend, and Tabor that Tabor was not involved in any way with Hayson's petition and the events that transpired in Goodwin's office on 3 March. Tabor's denials in particular appeared to be forthright, emphatic, and sincere. I further credit Goodwin and Friend regarding the ab- sence of any requirement that Hayson indicate on the copy of the petition he gave Goodwin that it was volun- tarily "given" to Goodwin, and the absence of any threat to Hayson to make him surrender a copy of the petition. There was no similar language on the bindery unit peti- tion, and no reason appears why Goodwin would find it unnecessary on that petition while requiring it on Hay- son's petition. I also note that Hayson's testimony on this issue was somewhat contradictory and was far from being emphatic. Thus, he claimed that Goodwin asked him to use the words "voluntarily given" but Hayson only wrote "given" to suggest he was not doing it volun- tarily. In his prehearing statement to the Board investiga- tor, Hayson made the specific claim that he had couched his release of the document to Goodwin in language that would indicate to someone reading it that it had not been surrendered voluntarily. Obviously, it falls far short of accomplishing this purpose, and on the contrary casts se- rious doubt on Hayson's contention. Moreover, no basis for any reluctance by Hayson to give Goodwin a copy of the petition was explained on the record. Finally, it must also be noted that the threat Hayson attributed to Goodwin to reflect on the petition that it was "given" to Goodwin was prefaced in Hayson's testimony by the equivocal words "to the effect" indicating, at best, Hay- son's equivocation and uncertainty if not an attempt to prevaricate. Accordingly, I conclude there was no un- lawful threat violative of Section 8(a)(1) issued to Hayson on this point and shall recommend that the com- plaint allegation regarding such threat be dismissed. Hayson's contention that following 3 March, Goodwin made repeated inquiries about the status of Hayson's pe- tition with the Board and stated that Respondent was counting on it impresses me as patently incredible. A single inquiry by Goodwin might be credible since Goodwin was well aware that Hayson intended to file the petition with the Board, but repeated inquiries and a statement that Goodwin or Respondent was counting on it just does not square with other facts. Respondent quickly withdrew recognition from the Union in the maintenance unit based on the petition copy provided by Hayson. In view of this it would be illogical for Re- spondent to urge Hayson to proceed in any manner with the petition. For the same reason, I find incredible Hay- son's testimony that Tabor said to go ahead and file with the Board the later petition, corrected as to form and supplied by a Board agent to Hayson. Moreover, Hayson never filed the corrected petition, a fact that lends cre- dence to the absence of any encouragement from Good- win or Tabor to do so. Notwithstanding the foregoing, the record shows some subtle assistance accorded Hayson in his preparation and ROSE PRINTING CO. circulation of the petition. Thus, Goodwin allowed Hayson to use his office telephone to make a long dis- tance telephone call to discuss the petition with Greene. The Board has found action such as this to be supportive of a finding of unlawful assistance. See Cummins Compo- nent Plant, 259 NLRB 456, 461 (1981). And Hayson's testimony that Goodwin gave him a stamped envelope in which to send the original petition to the Board was not contradicted. In the absence of such contradiction, I credit Hayson on this point. i 3 An employer's provision of a stamped envelope in similar circumstances has also been regarded by the Board as evidence of unlawful in- terference. Id. Hayson's testimony that Goodwin sup- plied him with certain names of unit employees so that he could obtain their signatures was also not specifically denied by Goodwin and is credited. While the supplying of such names in itself may not be unlawful, Montgomery Ward & Co., 187 NLRB 956 (1971), it is clearly a factor for consideration in determining the existence of unlaw- ful assistance. In addition, it must have been obvious to Goodwin that Hayson was going to secure, and in fact did secure, employee signatures on the petition during worktime. After all, by Goodwin's testimony, Hayson asked to use Goodwin's phone after lunch and came to Goodwin's office around 1 p.m. Hayson subsequently left with his petition and brought it back with signatures at 2:15 p.m. according to a notation on Respondent's copy of the pe- tition. Since according to Hayson it took him about 30 minutes to obtain the signatures, he must have circulated the petition to Goodwin's knowledge on worktime. Yet, there was no admonition by Goodwin beforehand against circulating it on worktime and no reprimand after Hayson returned the petition. Permitting an employee during worktime to circulate antiunion petitions has been held to constitute unlawful assistance. See Daisy's Origi- nals, Inc., 187 NLRB 251 (1970). Even Friend's presence in Goodwin's office during the Hayson call to Greene appears to have been intended to provide assistance. While Friend, contrary to Hayson, as- serted she took no notes, there is no other explanation on the record for her presence than to provide assistance. And, Friend did in fact assist Hayson by providing nota- rization services with Respondent's condonation, appar- ently free of charge. Finally, a search of the record reveals no specific deni- als by Goodwin of Hayson's testimony that Goodwin told him what to tell "hard sale" employees as well as those who might be concerned about a loss of benefits if the Union were decertified. To be sure, Friend's testimo- ny suggests Goodwin gave Hayson no unit employee names while she was present, but it is to be noted that Hayson and Goodwin were together prior to the time Friend ever came into the room. And while I would be inclined to discredit Hayson where contradicted, it ap- pears to me that his testimony in this instance was not all fabrication. In view of the undisputed acts of assistance set forth above, I find it not unlikely that Goodwin did 13 It is clear and not uncommon that a trier of fact where warranted may believe some but not all of what a witness says See, e g, Enterprise Products Co, 265 NLRB 544, 546, fn 2 (1982) 271 supply Hayson with arguments to be used on the mainte- nance employees. Accordingly, and in light of the ab- sence of specific contradiction, I credit Hayson on this point.' 4 "[A]n employer's solicitation, support, or assistance in the initiation, signing, or filing of an employee decertifi- cation petition interferes with the employees' Section 7 rights." Placke Toyota, 251 NLRB 395 (1974). I conclude that the sum of Respondent's conduct here constituted unlawful assistance to Hayson in the preparation and cir- culation of the decertification petition. Such conduct of Respondent includes allowing Hayson to use its phone for long distance purposes, its allowing Hayson to circu- late the petition on worktime, providing Hayson with a stamped envelope for mailing the petition to the Board, providing him with notarization services at no apparent cost, and giving instructions to Hayson by Goodwin of what to tell employees in securing their signatures on the petition. Accordingly, I find Respondent violated Sec- tion 8(a)(l) of the Act in this regard as the consolidated complaint alleges. Since the petition was a product of unlawful assist- ance, Respondent was not entitled to rely on the petition as valid grounds for doubting the Union's continued ma- Jonty status. Respondent was therefore under a continu- ing obligation to bargain collectively with the Union as the representative of the maintenance employees and its withdrawal of recognition of the Union on 5 March and subsequent refusal to recognize the Union violated Sec- tion 8(a)(5) as alleged . Architectural Woodwork Corp., 280 NLRB 930 (1986); Daisy's Originals, supra. It further fol- lows that the changes In employee benefits instituted by Respondent in the maintenance unit after the unlawful withdrawal recognition from the Union constituted uni- lateral changes at a time Respondent was still obligated to deal with the Union. I find such changes violated Sec- tion 8(a)(5) of the Act as alleged. 4. Withdrawal of recognition in bindery unit a. November conduct of Foreman Capps The complaint alleged that Respondent through Su- pervisor Johnny Capps, foreman in Respondent's folding and stitching department, in November urged its employ- ees to circulate a petition seeking to decertify the Union as bargaining representative of the bindery employees. Evidence on the issue is found in the testimony of bind- ery employee David Shivar who related that in the fall of 1985, feeling that he was being "harassed" by the Union, he had asked Capps how he "could get the Union from harassing me." Capps responded that he did not know but would find out. Subsequently, Capps returned 14 In reaching this conclusion, I also note that Goodwin was vague regarding any discussions with Hayson after Hayson finished his phone conversation with Greene He testified as follows. Q What happened after he hung up the phone9 A. He told me that he had the wording for a decertification peti- tion and that he would need to have it notarized Q Okay Give me the whole conversation in your office A Basically that was the end of the conversation Such testimony even omits the discussion regarding the notarization process that Friend admits took place 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and told Shivar that if he wanted the Union to stop har- assing him he could pass around a decertification peti- tion. Shivar told Capps he did not know about the word- ing for such a petition. Capps again responded by saying he would get back with him on that. Sometime thereaf- ter Capps gave Shivar the name and number of an attor- neyls to call, and Shivar called the attorney from Capps office, although it is not clear whether Capps was present at the time. The attorney, whose name Shivar could not recall, told Shivar the necessary steps to take in connection with the petition, and later, Shivar pre- pared and attempted to circulate a petition . However, only about eight people signed the petition and Shivar dropped any further action on it. Arguments and conclusions Capps did not testify Shivar's testimony was uncontra- dicted. Such testimony is credited. The General counsel argues that Capps implanted the idea of decertification in Shivar's mind and therefore went beyond mere "ministerial assistance." The argu- ment is bottomed on the fact that Shivar had inquired about stopping certain unspecified harassment by the Union, not decertification. Respondent in its defense viewed Shivar's testimony as presenting Capps with a re- quest for information on "getting rid of the Union," and asserts Capps did nothing more than give him the name and number of an attorney. An employer "does not violate the Act by referring an employee to the Board in response to a request for advice relative to removing the union as bargaining rep- resentative." Placke Toyota, supra. The same can appar- ently be said when the employer refers the employee to an attorney, rather than the Board, if the attorney is un- connected to the employer as in the case sub judice. On the other hand, any solicitation, support, or assistance by an employer in the initiation, signing, or filing of a decer- tification petition is unlawful and violates the Act. Id. However, an employer's providing information regarding a decertification petition in direct response to requests by an employee for such information does not violate the Act. See Amer-Cal Industries, supra. The initiation of a decertification petition may result from nothing more than an idea implanted in an employ- ee's mind by the employer. See Weisser Optical Co., 274 NLRB 961 (1985). Here the evidence shows that Shivar complained to Capps about unspecified harassment. Capps' response was to tell Shivar he could pass around a decertification petition, and then provided Shivar with a source for further information. Although decertifica- tion may perhaps constitute a "remedy" for certain union "harassment," it could well constitute "overkill" for any immediate and legitimate concerns by Shivar of harass- ment that could be entirely unrelated to a desire not to have the Union represent him or other employees. On 15 Respondent's attorney Blue admittedly advised Tabor and Goodwin that during negotiations employees might be displeased with the Union and seek to decertify it. Blue further advised them that it supervisors were asked about decertification they should not talk about it. Blue gave them a number of the law firm of Richson and Brown in Orlando, Flon- da, unrelated to Blue's firm, to provide employees information on decerti- fication. the evidence here, there is no basis for a conclusion that Capps' referral to a decertification petition in his reply to Shivar's question was an appropriate response . Rather, and without more, Capps' reference to a decertification petition, in my opinion, amounted to an unsolicited sug- gestion that decertification was the only alternative avail- able for Shivar's concerns, whatever they were. Under these circumstances, I conclude Capps effectively im- planted the idea of decertification in Shivar's mind. In this regard, I conclude, Respondent violated Section 8(a)(1) of the Act as alleged. b. The petition circulated by Rogers Carrie Rogers, a 17-year employee of Respondent who worked in the bindery department and who did not join in the Union's strike, testified that she circulated a peti- tion among Respondent's bindery employees on 28 Feb- ruary and 3 March stating they no longer wished the Union to represent them. Rogers, who contended that she had resigned from the Union in October, secured a majority of the unit employees' signatures on the peti- tion. She testified that she gave the petition to Goodwin at 8:15 a.m. on 3 March. The General Counsel does not contest the facts sur- rounding Rogers' circulation of the petition asserting only that Rogers' testimony raises "doubts about how she went about circulating the petition." Nevertheless, the General Counsel's position is that Rogers' petition was invalid because it arose in the context of Respond- ent's unfair labor practices, and that Respondent there- fore violated Section 8(a)(5) of the Act when it with- drew recognition from the Union based on Rogers' peti- tion. As Respondent's brief notes, an employer may refuse to bargain with a union if it has a good-faith doubt of the Union's majority status. Generally, a petition rejecting the Union signed by a majority of unit employees would provide a good-faith doubt warranting withdrawal of recognition in the absence of unfair labor practices on the part of the employer. (See, e.g., Hemet Casting Co., 260 NLRB 437 (1982). However, not all unfair labor practices will serve to preclude an otherwise valid peti- tion from being a legal basis for withdrawal of recogni- tion. (See, e.g., Carolina American Textiles, 219 NLRB 457 (1975); Vernon Mfg. Co., 219 NLRB 622 (1975).) I have previously found that Respondent violated the Act in November in implanting the idea of a decertification petition in the mind of employee Shivar. However, Shi- var's petition was dropped more than 3 months prior to Rogers' petition and there is no evidence that Rogers had ever been aware of Shivar's petition. It is therefore impossible to conclude that Rogers' petition flowed from, or was in any way related to, Shivar's petition. And there is no evidence that Rogers' petition was a product of independent unlawful suggestion, encourage- ment or assistance. And it was completed prior to Hay- son's petition, discussed supra, which I concluded result- ed from unlawful assistance. As to the occurrence of Roger's petition in the context of other unfair labor practices, I previously found, supra, that Respondent did not lawfully bargain with regard to ROSE PRINTING CO. 273 the compulsory use of vacation time during the Christ- mas shutdown. It is to be noted, however, Respondent did at least preserve the issue of compulsory use of vaca- tion time so that employees would not be adversely af- fected until after the Board had ruled on the matter. Re- spondent's unlawful act in this regard which also oc- curred at least 2 months prior to Rogers' petition could hardly have influenced the initiation or circulation of the petition and there was no direct evidence connecting the two events . It follows, and I conclude, that Rogers' peti- tion was not unlawfully tainted by the unfair labor prac- tices previously found . Accordingly, and because it is not disputed that Rogers' petition was signed by a major- ity of unit employees, I find that the petition provided a legitimate basis for doubt as to the Union's majority status, and that Respondent's withdrawal of recognition from the Union in the bindery unit did not violate Sec- tion 8(a)(5) and (1) of the Act. D. Respondent 's Actions Against Hayson 1. The facts claimed by Hayson The complaint, as amended, alleges that Respondent on 8 April imposed more onerous and rigorous terms of employment on Hayson by transferring him from the day to night shift on 11 April and issued a written warning to him all because of his union or other protected concerted activities. It also alleged that Respondent on 26 April, through Goodwin, violated Section 8(a)(1) of the Act by threatening employees with unspecified reprisals because employees had given testimony under the Act. To support the allegation, Hayson testified that on 7 April he was switched from his day shift, which ended at 4:15 p .m., to the night shift starting at 11:15 p.m. as a result of Respondent's increase in work volume flowing from the start up of the new state legislative session. Su- pervisor Patterson advised him of the change and when Hayson pointed out to Patterson that there was a new electrician with less seniority , Patterson simply replied that seniority did not mean anything and he had been told to tell Hayson of the change. Hayson further pro- tested to Patterson that no electrician had previously been assigned the night shift but Patterson answered that it was company policy. On 11 April, Hayson received a written reprimand from Patterson which Patterson had left in Hayson's locker. The reprimand complained of insubordination by Hayson in failing to comply with instructions regarding (a) preparing circuit boards for shipment for repair, (b) supplying power to the prep department light table, and (c) placing locks on certain cabinets . The reprimand noted that Hayson had a history of not willingly follow- ing orders and concluded with the warning that any fur- ther insubordination would result in discharge. Hayson testified that he telephoned Patterson about the reprimand and Patterson stated that Tabor had told him to write Hayson up. Hayson complained that the basis for the reprimand was fictitious and Patterson re- sponded that Hayson had the "higher ups pissed off' at him. Hayson asked Patterson if he thought it had any- thing to do with the petition, and Patterson answered that he thought it did. The following day Hayson telephoned Tabor and asked him about the matter . Tabor professed ignorance of the warning, claimed he had never said anything to Patterson about it, but said he would speak to Patterson. Subsequently, according to Hayson, Patterson, about 13 April, called Hayson and inquired about his injured back and then told Hayson that Patterson had "his ass chewed out about the reprimand issued Hayson ." Patterson added that Tabor had told him that no disciplinary action was to be taken without Tabor's approval. When Hayson pointed out that Patterson had initially told Hayson that the reprimand was at Tabor's direction, Pat- terson answered that Tabor was just lying or trying to weasel out of it or "something-to that effect. Hayson in his testimony denied that he was guilty of the conduct complained of in the reprimand . Specifical- ly, he contended he had been told to repair the circuit boards, not send them in for repair, that he was unable to install the locks without hasps which he had requisi- tioned, and that he had received no order to supply power to the light table. Finally, in connection with the alleged threat by Goodwin, Hayson testified that subsequent to 28 April when he was ill at home with his back injury he was telephoned by Goodwin. Goodwin inquired about Hay- son's back and then inquired if Hayson had seen the arti- cle appearing in a local newspaper on 25 April regarding Respondent's possible violations of the Act. The article referred to comments of a spokesman of the NLRB in the Jacksonville resident office noting that the Board had evidence supporting "the union's charges that [Respond- ent] had broken labor rules when non -striking workers voted to reject the union after the strike." Hayson ac- knowledged that he had seen the article and expressed to Goodwin his "wonder at what went wrong ." Goodwin replied, still according to Hayson , "Oh, we knew what went wrong and we knew who the traitor is," and "we're taking care of it. Contrary to Hayson's testimony, Patterson testified that he was told to put an electrician on the night shift by Tabor during the legislative session and would have assigned the junior electrician, Buffo, to the shift except that Hayson volunteered to take the night shift . The ad- vantage to the night shift, Patterson pointed out, was that it paid a shift premium and employees on the shift worked 6 days a week and consequently got 8 hours of overtime. However, Hayson was on the shift a week when he wanted off. Patterson advised him if he came back to day shift, he would have to help out with the "sewing machine." Hayson said he did not want to do mechanical work and opted to stay on the third shift. Patterson conceded that he had issued the written rep- rimand to Hayson but insisted the reprimand was war- ranted. Specifically Hayson had refused to follow orders about preparing circuit boards for shipment, an item of some concern to Tabor who made repeated inquiries to Patterson about the circuit boards . Patterson insisted he had told Hayson for three nights to supply power to a light table, and Hayson had failed to do it . Finally, re- garding the installation of locks, Patterson related that Hayson had told him that two could not be installed. 274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Eight others could be but Hayson failed to install them. Patterson denied that anyone told him to give the warn- ing to Hayson and maintained that neither Tabor nor Goodwin knew about it beforehand. When Tabor learned of the warning he told Patterson he wanted prior notification of all reprimands and issued a memorandum to all department heads to this effect.16 Patterson specifi- cally denied telling Hayson that the reprimand was di- rected by Tabor, that management was "pissed off' at Hayson, or that Tabor was trying to weasel out of re- sponsibility for the reprimand. Tabor's testimony was in full accord with Patterson's. He acknowledged Hayson called him about the repri- mand from Patterson but emphatically stated he was not aware of the reprimand beforehand and denied he had told Patterson to issue it. He said the issuance of a repri- mand without Tabor's knowledge was contrary to policy, and he so advised Patterson. Tabor added, with- out contradiction, that after the reprimand he called Pat- terson and Hayson to his office and told them that each had skills Respondent needed and admonished them to try to get along and work together but also told Hayson that he would have to follow Patterson's instructions. Goodwin denied in his testimony calling Hayson at his home and making the remark concerning the traitor that Hayson attributed to him. Further, Goodwin testified he had never called Hayson at his home to talk about the Union or anything dealing with unions, and while he ac- knowledged calling Hayson at his home about the hiring of maintenance employee Mike King, t 7 he specifically and emphatically denied calling Hayson at his home after his back injury. 2. Conclusion In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert, denied 455 U.S. 989 (1982), ap- proved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the Board held that in all 8(a)(3) or 8(a)(1) cases turning on employer motivation, the Gener- al Counsel must establish a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's action, and, after- wards once a prima facie case is established, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct. Here, I am persuaded the General Counsel has failed to establish a prima facie case that any action taken against Hayson was discriminatory. Clearly, Hayson was not engaged in union activity. And while he may well have been engaged in protected conduct in connection with his decertification petition activity, there is absolutely no evidence to establish Respondent was unhappy with his actions in that regard. Further, at the time of the shift change and the reprimand Hayson had not even been contacted by the Board investigators re- 18 Patterson conceded that he had given prior reprimands to employ- ees in the maintenance department without incident, but he was not aware whether Tabor knew of such warnings 17 Hayson had been instrumental in King's obtaining employment with Respondent garding the Union's charge.18 Under these circum- stances, there was no basis for Respondent to be motivat- ed to take action against Hayson for his protected con- duct and thus no basis for concluding protected conduct was a "motivating factor" in the alleged discriminatory action against Hayson. Even assuming that Hayson's testimony established a prima facie case, I would not find the violations alleged because I do not credit Hayson's testimony. Patterson's testimony impressed me as reasonable and his demeanor during his testimony conveyed the impression of honesty and conviction. Weighed against the testimony of Hayson, I find Patterson decidedly more credible. More- over, it is difficult to perceive how a transfer to a shift which would allow Hayson to make significantly more money, would nevertheless be discriminatory, particular- ly in the absence of evidence that the work was more ar- duous or rigorous or that Hayson would encounter trans- portation or other personal problems that to Respond- ent's knowledge would make it more difficult for him to man the shift. I find under all these circumstances, it was more likely, as Patterson testified, that Hayson volun- teered for the shift and only later decided he wanted to return to the day shift. I also credit Patterson's testimony supported by Tabor regarding the reprimand of Hayson. Again there ap- peared to be no logical basis for Respondent's unhappi- ness with Hayson for union or protected activities or any basis other than those items specified in Patterson's repri- mand. Patterson may well have alluded to Tabor's con- cerns about the circuit boards in his discussion with Hayson, since Tabor admits expressing concern to Pat- terson and directing him to get the boards shipped. How- ever, Patterson's telling Hayson of this does not establish that Tabor directed issuance of the reprimand. It is more likely that he did not, for, otherwise, it would have been unnecessary for Tabor to subsequently admonish Patter- son not to issue reprimands without his knowledge. In addition, Tabor's subsequent issuance of a memo to de- partment heads not to issue reprimands without his knowledge would constitute a rather drastic step for one who is simply trying to "weasel out" of responsibility for Hayson's reprimand. Accordingly, crediting Patterson and Tabor's testimony, which was mutually supportive and entirely plausible and credible, I conclude that the reprimand issued to Hayson was not discriminatorily mo- tivated and that neither Hayson's transfer to the night shift nor his reprimand was violative of Section 8(a)(3) and (1) of the Act. I do not credit Hayson's testimony over that of Good- win attributing to Goodwin a reference to Respondent's knowing who the "traitor" was. Goodwin's denial of the remark was emphatic and persuasively delivered. I there- fore find Goodwin did not make the remark Hayson at- tributed to Goodwin and Respondent did not violate Section 8(a)(1) of the Act in this regard. 18 It appears Hayson gave his first statement to the Board investigators on 16 April Even then there is no evidence Respondent was aware of his having given a statement. ROSE PRINTING CO. 275 E. Nature of the Strike The General Counsel argues as the complaint alleges that the strike that began about 22 January by the bind- ery unit and the maintenance unit employees was caused by the unfair labor practices of Respondent. It is urged that the bindery employees as well as the maintenance employees struck to protest Respondent's bargaining conduct, which amounted to a violation of Section 8(a)(5) of the Act. Respondent, on the other hand, argues that it committed no violation of the Act so the strike could only be regarded as an economic strike. It is horn book labor law that a strike caused in whole or in part by an employer's unfair labor practices consti- tutes an unfair labor practice strike . NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). Conversely, an economic strike is one not caused by an employer's unfair labor practices. NLRB v. Pecheur Lozenge Co., 209 F.2d 393 (2d Cir. 1953), cert. denied 347 U.S. 953 (1954). Unfair labor practice strikers are entitled to reinstatement on their unconditional offer to return to work. Economic strikers are entitled to reinstatement if they have not been permanently replaced at the time of their offer to return to work, and even if replaced, remain employees entitled to reinstatement on departure of replacements. Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). In establishing the existence of an unfair labor practice strike, a causal connection must be shown between the employer's unfair labor practices and the strike . Robbins Co., 233 NLRB 549 (1977); Winter Garden Citrus Prod- ucts Cooperative v. NLRB, 238 F.2d 128 (5th Cir. 1956). A strike that begins as an economic strike may be con- verted to an unfair labor practice strike notwithstanding the continuation of the economic issues that constituted the original basis for the strike . See Giustina Bros. Lumber Co., 116 NLRB 700 at 731 (1956). In the case sub judice, I have found that Respondent did not refuse to bargain in good faith in the bindery negotiations. And while I have found that Respondent violated Section 8(a)(5) and (1) in its unilateral action regarding the com- pulsory use of accrued vacation time by employees for the Christmas shutdown and its refusal to bargain on the matter and arbitrate the issue, there is no evidence of a causal connection between such action and the strike. Further, as already noted, Respondent preserved the issue on the compulsory use of vacation time by allowing the employees to advise it of their desire not to use ac- crued vacation prior to the shutdown so that the matter could be subsequently resolved by the Board or an arbi- trator. The record reflects that only one bindery employ- ee, Peggy Powers, advised Respondent that she did not want to use her vacation time during the Christmas shut- down. Employee concern over the issue, therefore, ap- pears not to have been of great magnitude. That the Union did not consider Respondent's action on the compulsory vacation use to be a cause of the strike is demonstrated by the fact that although the Union filed a charge on the employer 's unilateral action, in Case 12-CA-11819 on 18 November and even though it filed a subsequent charge and amended charge in Case 12-CA-1191-3 on 18 February and 27 March, respec- tively, it made no contention regarding the unfair labor practice status of its strike until the filing of the second amended charge in Case 12-CA-11912-3 on 17 April. Further, minutes of the union meeting at which the strike vote was taken were received in evidence. Those min- utes do not refer to the compulsory vacation time use as an issue or concern. Moreover, the minutes refer to no unfair labor practice claims regarding Respondent's bar- gaining conduct, and, on the contrary, by reference to Respondent's right to hire permanent replacements during the strike, the minutes reveal the Union's contem- plation of the strike as a wholly economic one. Although the Union's telegram to Respondent on 22 January advis- ing Respondent of the strike did refer to the strike being based on Respondent's unfair labor practices, it did not specify what actions it contended were unlawful. Under these circumstances and in the absence of direct evidence of the causation of the strike, I cannot infer or otherwise conclude that Respondent's violation of the Act regard- ing the compulsory use of vacation time for employees during the Christmas shutdown was a cause of the strike. The above reasoning also applies to Respondent's vio- lation of the Act in suggesting the decertification petition to Shivar. In fact, the record does not show that any members of the Union or union officials were even aware of Shivar's petition prior to the strike. Absent such knowledge, it can hardly constitute a cause for the strike. Considering the foregoing, I find that the strike at its inception was not an unfair labor practice strike. This does not, however, preclude its later conversion to such a strike. Respondent was not found responsible for any unlawful action between the beginning of the strike and the unlawful assistance accorded Hayson with the main- tenance petition on 3 March. There is no direct evidence that Respondent's unlawful conduct with respect to the Hayson petition converted the strike to one based on unfair labor practices. Respondent's withdrawal of rec- ognition from the Union, however, based on Hayson's unlawfully assisted petition could only have tended to prolong the strike since it deprived the striking employ- ees of services of their representatives in negotiating either an end to the strike or a bargaining agreement in the maintenance unit acceptable to the striking employ- ees. See Wilder Construction, 276 NLRB 977 (1985); Whisper Soft Mills, 267 NLRB 813 (1983); Pennco, Inc., 242 NLRB 467, 469 (1979). Accordingly, I conclude that the strike was converted to an unfair labor practice strike on 5 March when Respondent unlawfully withdrew rec- ognition of the Union in the maintenance unit. After that date, I conclude, all of the strikers became unfair labor practice strikers. F. Refusal to Reinstate the Strikers The complaint alleges that Respondent about 6 May refused to reinstate certain strikers set forth in appendi- ces to the consolidated complaint. It is undisputed that the Union on 5 May sent an unconditional offer on behalf of all strikers to return to work "effective immedi- ately." Respondent by letter from Tabor dated 6 May advised the Union that the striking employees "are now on a preferential recall list," and would be recalled to 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work consistent with the law applicable to economic strikers. Further, Respondent in its answer to the con- solidated complaint raised the affirmative defense that certain of the strikers named in the strike voluntarily re- signed their employment during the strike and were no longer entitled to reinstatement. Because I have found that the strike was converted to an unfair labor practice strike on 5 March, those strikers named in Appendices A and B to this decision and not otherwise specifically treated in this decision who were unreplaced as of 5 March are entitled to reinstatement . The remaining strik- ers are entitled to be placed on a preferential hiring list to be hired in accordance with seniority or other nondis- criminatory basis. See Charles D. Bonanno Linen Service, 268 NLRB 552 (1984). At the hearing, Goodwin testified that seven employ- ees named in the complaint, Brad Bowman, Richard J. Frauenthal, W. E. Posey, Mike Segler, Lester Posey, Jackie Lane, and Richard Heburn Jr. had resigned during the strike or prior to the hearing. The parties liti- gated the effectiveness of the resignation for reinstate- ment purposes of all these employees with the exception of Lane.' 9 Bowman resigned on 12 February executing a resignation saying that he was terminating his employ- ment effective immediately, the reason being that during the strike his job was replaced by another employee. His letter requested pay for his unused vacation and for his contributions to the retirement fund. Similar letters were executed by Lester Posey on 18 February and Segler on 19 March. W. E. Posey admittedly resigned on 12 Feb- ruary after being told his job had been filled. His written resignation does not contain a specific request for his re- tirement contributions but a notation on the resignation reflects he received such contributions. Frauenthal's written resignation is not in evidence but he admittedly resigned on 29 May. All five of these strikers testified they resigned in order to obtain their retirement contri- butions to alleviate their financial hardships resulting from the strike.20 All except W. E. Posey, who was not asked, specifically testified they would return to their former positions with Respondent if such positions were offered. The General Counsel asserting that Respondent has the burden of rebutting the presumption that the strikers have a continuing interest in their jobs claims Respond- ent has not affirmatively established that the five strikers named above who resigned intended to permanently abandon their former positions. See Harowe Servo Con- trols, 250 NLRB 958, 964 (1980). The execution of the resignations during the strike, according to the General Counsel, citing P.B.R. Co., 216 NLRB 602, 604 (1975), and S & M Mfg. Co., 165 NLRB 663 (1967), did not, without more, reflect a permanent abandonment of em- ployment. Respondent argues the contrary, citing Bever- age-Air Co., 185 NLRB 168 (1970). 19 Because the circumstances of Lane's alleged resignation are not set forth, any entitlement of Lane under the recommended Order here issued shall be left to the compliance stage of this proceeding. 20 The parties stipulated that under the terms of Respondent 's retire- ment plan, employees could obtain the money vested therein by severing their employment relationship through termination , involuntary or volun- tary, or by retirement The Board has held in strike situations that to preclude a finding that a striker has permanently severed his em- ployment by a direct communication to the employer of his intention to quit there must be a showing of some reservation or qualification in the quitting or a showing of continued interest by the striker. See Drug Research, Inc., 233 NLRB 253 (1977); Roylyn, Inc., 178 NLRB 197 (1969); Dalton Sheet Metal Co., 207 NLRB 188, 191-192 (1973); P.B.R., supra. In the instant case, it is clear that no reservations or qualifications were expressed to Re- spondent by the strikers in their respective resignations. However, Respondent has acknowledged here that ter- mination of employment was the only way strikers could obtain their retirement contributions. All of the strikers indicated that this was their purpose in resigning. Fur- ther, there was no showing that at the time of the execu- tion of these resignations, the strikers had employment elsewhere. Nor was there any evidence that the strikers abandoned the strike following their resignations, al- though Bowman did find other employment shortly after his resignation and possibly as a result of his having re- signed . The fact that the strikers did not have jobs at the time of their resignations nor had they expressed to Re- spondent any immediate prospects of having a job at the time of their resignations are factors that serve to distin- guish the instant case from Beverage-Air relied on by Re- spondent. Under these circumstances and because of the existing economic need expressed by the strikers, I con- clude that the execution of the resignations did not re- flect an intent on the part of the strikers to permanently abandon their jobs. Accordingly, they shall not be strick- en from the reinstatement order recommended here. With respect to Heburn, the uncontradicted evidence shows that shortly after the Union's offer to return the strikers to work, Goodwin telephoned Heburn offering him a job at $7 per hour. When Heburn reported for work, he found that the job was the same one he held prior to the strike at a higher rate of pay. There is no dispute that the $7 rate was the rate proposed by Re- spondent and imposed on impasse. Heburn rejected the job explaining to the foreman that he could not take the job for less than he was making before the strike. More- over, he testified he told the foreman that he had learned from the Union that another employee was making $9 per hour on the same job. Respondent conceded that a retired part-time employee who was not covered by the Union's collective-bargaining agreement and who re- ceived no fringe benefits had been paid the higher rate for about 12 hours of work over a 2-week period. Not- withstanding his earlier rejection of the job, Goodwin wrote Heburn on 14 May saying that no regular full-time employee in the folding area earned more than $7 per hour and offered the job again to Heburn telling him to report for work on 19 May. Heburn never responded. The General Counsel's position on Heburn appeared to be that because the wage reduction of Heburn's job flowed from Respondent's unlawful refusal to bargain, the offer made to Heburn to return to work at the lower rate was invalid and Heburn's rejection of the job under these circumstances did not amount to an unequivocal resolve to not accept reinstatement. Because I have ROSE PRINTING CO. 277 found, however, that Respondent did not bargain in bad faith in the bindery unit negotiations, and because the rate imposed by Respondent was consistently rejected by the Union and imposed after impasse, the new rate of- fered Heburn was not unlawful. The offer to reinstate Heburn was accordingly valid and his rejection of the offer twice reveals an unequivocal resolve not to accept reinstatement. Accordingly, I shall not include him in the reinstatement order provided. CONCLUSIONS OF LAW 1. Respondent, Rose Printing Company, Inc., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union, Graphic Communications Union, Local 241-B, Graphic Communications Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute separate units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: (a) All employees of Respondent's bindery oper- ation at the meaning of section 8(a)(1) of the Act. (b) All regular and full time maintenance employ- ees, including maintenance mechanics, plant cleri- cals, baler operator and janitor employed by Re- spondent at its Tallahassee, Florida facility; exclud- ing all other employees, office clerical employees, bindery and press room employees and operators, professional employees, guards, and supervisors as defined in the Act. 4. The Union has been the duly recognized collective- bargaining representative of all employees in bindery unit described above at all relevant times prior to 4 March 1986. 5. The Union has been, and is now, the certified and exclusive collective-bargaining representative for all em- ployees in the maintenance unit described above. 6. By announcing on or about 16 October 1985 and by implementing its decision to require compulsory vacation use by unit employees for the 1985 Christmas shutdown without notice to or bargaining with the union and by unilaterally disavowing the continuing operation of the prevailing arbitration provision by refusing to arbitrate a grievance on this action, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By encouraging and assisting employees employed in its maintenance unit in the circulation of a petition to decertify the Union, Respondent engaged in, and is en- gaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. By withdrawing recognition from the Union about 5 March 1985 and thereafter refusing to bargain collective- ly in good faith with the Union as the exclusive repre- sentative of its maintenance employees, Respondent en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 9. By unilaterally changing the terms and conditions of employment of employees in the maintenance unit about 5 March 1985 without notice to or bargaining with the Union, Respondent engaged in , and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 10. Respondent's violations of Section 8(aX5) and (1) of the Act referred to paragraphs 7, 8, and 9 above con- verted the economic strike that began on 22 January 1986 into an unfair labor practice strike on 5 March 1986. 11. By refusing to reinstate strikers listed in Appendi- ces B and C to this decision following the unconditional request of the Union on behalf of the striking employees made on 5 May 1986 and by treating such strikers as economic strikers, Respondent engaged in, and is engag- ing in, unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 12. The unfair labor practices set forth above in para- graphs 6 through 11 affect commerce within the meaning of Section 2(6) and (7) of the Act. 13. Respondent did not violate Section 8(a)(3) and (1) of the Act through the transfer of employee George Hayson to the night shift on 7 April 1986 or in issuing a written warning to him on 11 April 1986. 14. Respondent did not violate the Act by implement- ing its last offer to the Union in the bindery unit about 20 January 1986, by withdrawing recognition from the bindery unit about 4 March 1986 or in any other manner alleged in the consolidated complaint as amended. THE REMEDY Having concluded that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain af- firmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally announcing and imple- menting its decision to impose on employees the compul- sory use of accrued vacation time for the 1985 Christmas shutdown, it will be ordered that Respondent rescind its unilateral action and restore accrued vacation leave to those compelled to utilize such leave for the 1985 plant shutdown. Inasmuch as this recommended action renders the Union's grievance on the matter moot, an affirmative order requiring further processing of the grievance to in- clude arbitration becomes unnecessary. However, Re- spondent's unilateral disavowal of the effect of the arbi- tration provision in the then existing agreement with the Union warrants remedial action and a notice provision. Because Respondent unlawfully withdrew recognition from the Union in the maintenance unit, it will be or- dered that Respondent recognize the Union, and on re- quest, bargain with it collectively as exclusive represent- ative of all employees in the maintenance unit, and if an understanding is reached, embody such understanding in a signed agreement. In view of Respondent's unilateral changes in the terms and conditions of the maintenance employees about 5 March, Respondent will be required to restore the status quo ante by restoring the employee 278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD working conditions as they existed prior to the unilateral changes and to make employees whole for any losses in pay or benefits suffered by them as a consequence of Re- spondent's unlawful action. This make whole remedy shall include interest to be computed in the manner pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977).21 Because the employees named in Appendices B and C to this decision who participated in the economic strike beginning on 22 January 1986 and converted to an unfair labor practice strike by Respondent's violation of Section 8(a)(5) of the Act on 5 March 1986 requested uncondi- tional reinstatement on 5 May 1986, Respondent shall im- mediately reinstate them to their former or substantially equivalent positions without impairment of their seniority rights and other privileges. In order to make room for them, Respondent shall dismiss, if necessary, all persons hired after 5 March 1986. If after such dismissals there are insufficient positions available for the remaining former strikers, any available positions shall be accorded the strikers on a nondiscriminatory basis in accordance with seniority or other nondiscriminatory criteria. Former strikers who were permanently replaced prior to the conversion of the strike and for whom no positions are immediately available shall be placed on a preferen- tial hiring list in accordance with their seniority or other nondiscriminatory basis, and they shall be reinstated before any other persons are hired or upon the departure of their preconversion replacements . See Charles D. Bon- anno Linen Service, supra. Those former striking employees entitled to immediate reinstatement shall be made whole for any loss of earn- ings they may have suffered by reason of Respondent's refusal to reinstate them in accordance with their uncon- ditional request to be reinstated. Backpay shall be com- puted in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Flori- da Steel Corp., supra. The General Counsel in the complaint in this matter sought a "visitorial clause" authorizing the Board, for compliance purposes, to obtain discovery from Respond- ent under the Federal Rules of Civil Procedure subject to the supervision of the United States Court of Appeals enforcing an order in this case. The Board authorized such a clause in Hilton Inn North, 279 NLRB 45 fn. 3 (1986), in view of the possible complexity of computing the make whole remedy in that case. The instant case also presents a possibility of complex computations in the make whole remedy provided. Accordingly, I find a "vi- sitonal clause" appropriate here. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed22 21 See generally Isis Plumbing Co, 138 NLRB 716 (1962). 22 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 ORDER Respondent, Rose Printing Company, Inc., Tallahas- see, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain collectively in good faith with Graphic Communications Union Local 214-B, Graphic Communications International Union, AFL-CIO, CLC as the exclusive representative of its employees in the following unit: All regular and full time maintenance employees, in- cluding maintenance mechanics, plant clericals, baler operator and janitor employed by Respondent at its Tallahassee , Florida facility; excluding all other employees, office clerical employees, bindery and press room employees and operators , profes- sional employees, guards, and supervisors as defined in the Act. (b) Changing the terms and conditions of employment of its employees in the maintenance unit represented by a duly recognized collective-bargaining representative without the consent of that representative or without a valid impasse and bargaining having been reached by that representative. (c) Disavowing the continuing operation of the arbitra- tion provision in the bindery collective-bargaining agree- ment by refusing to arbitrate disputes arising prior to the expiration of that agreement. (d) Refusing to reinstate unfair labor practice strikers on their unconditional offer to return to work. (e) Unlawfully encouraging and assisting employees to circulate petitions to decertify the Union. (f) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action. (a) Recognize and, on request, bargain with the Union as the exclusive representative of its employees in the following unit: All regular and full time maintenance employees, in- cluding maintenance mechanics, plant clericals, baler operator and janitor employed by Respondent at its Tallahassee, Florida facility; excluding all other employees, office clerical employees, bindery and press room employees and operators, profes- sional employees, guards, and supervisors as defined in the Act. (b) Rescind the unilateral imposition of compulsory use by employees of accrued vacation time for Christmas shutdown and restore to employees any accrued vacation leave involuntarily used by them as a result of Respond- ent's unilateral action. (c) Restore the maintenance unit employees terms and conditions of employment in existence prior to 5 March 1986 and continue them in effect until an agreement on any changes thereon is reached with the Union or a bona fide impasse exists. ROSE PRINTING CO. (d) Make employees whole, with interest, for any loss suffered by them as a result of the unilateral changes In the maintenance unit on 5 March 1986. (e) Immediately and fully reinstate its employees who participated in the strike that began on 22 January 1986 and who unconditionally reapplied for reinstatement on 5 May 1986 to their former or substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any re- placements hired in their former jobs on or after 5 March 1986. Make whole these employees for any loss of earnings they may have suffered as a result of the dis- crimination against them in the manner set forth in the Remedy section above. Place the remaining former strik- ers on a preferential hiring list in accordance with their seniority or other nondiscriminatory basis and offer them employment before any other persons are hired or on the departure of any replacements hired before 5 March 1986. (f) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security records, timecards, personnel records and reports, and all other records necessary to analyze Respondent's obligation to reimburse employees for benefits and wages lost as a result of the above-de- scribed unfair labor practices. (g) Post at its Tallahassee, Florida facility copies of the attached notice marked "Appendix A."23 Copies of the 23 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- 279 notice, on forms provided by the Regional Director for Region 12, after being signed by Respodent's authorized representative, shall be posted by Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicious places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. For the purpose of determining or securing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discov- ery from Respondent, its officers, agents, successors, or assigns, or any other person having knowledge concern- ing the compliance matter, in the manner provided by the Federal Rules of the Civil Procedure. Such discov- ery shall be conducted under supervision of the United States Court of Appeals enforcing this Order and may be had upon any matter reasonably related to compliance with this Order, as enforced by the court. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the act not spe- cifically found. 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."