Johns-Manville Sales Corp.

358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Johns-Manville Sales Corporation and International Association of Machinists and Aerospace Work- ers, AFL-CIO, District Lodge No. 115, Local Lodge No. 1549. Cases 32-CA-4012 and 32- CA-4377 June 27, 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On September 30, 1982, Administrative Law Judge David G. Heilbrun issued the attached deci- sion. The General Counsel, the Charging Party, and the Respondent filed exceptions and supporting briefs, and the Respondent filed an answering brief. 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, i and conclusions only to the extent consistent with this Decision and Order. The complaint alleges that the Respondent vio- lated Section 8(a)(5) and (1) of the Act by with- drawing recognition from the Union on August 26, 1981,2 and by failing and refusing to bargain with the Union since October 5. The complaint also al- leges that the employee strike of April 13 was pro- longed by the Respondent's unfair labor practices and was converted to an unfair labor practice strike on October 29. The complaint further alleges that the Respondent violated Section 8(a)(5), (3), and (1) by refusing to pay to striking employees in 1982 accrued vacation benefits, which were earned during the period of January 1 through April 13. The judge dismissed the complaint in its entirety. First, he found that the Respondent could lawfully withdraw recognition from the Union and that the strike was not an unfair labor practice strike. Second, he found that the Respondent could with- hold the strikers' 1982 vacation pay. We disagree with the judge's first finding because the evidence offered in support of the Respondent's asserted good-faith doubt is insufficient to rebut the pre- ' The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive 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 re- versing the findings The judge stated that even under the Respondent's view of the con- tract, the vacation pay paid in 1981 prior to the beginning of the strike was based on 1981 earnings The judge was incorrect in this respect In the Respondent's view, all vacation pay paid in 1981 was calculated on 1980 earnings 2 All dates are in 1981 unless otherwise indicated sumption of the Union's continuing majority status. Thus, we conclude that the Respondent violated Section 8(a)(5) and (1) of the Act and that the strike became an unfair labor practice strike. While we adopt the judge's conclusions on the vacation pay issue, we do so only for the reasons set forth below. 1. Withdrawal of recognition: The Respondent is a Delaware corporation engaged in the nonretail manufacture of water pipe and related products at Stockton, California. Since 1958 Machinists District Lodge 115, Local Lodge 1549 has been the exclu- sive collective-bargaining representative of the Re- spondent's production and maintenance employees at its Stockton facility. The parties' last collective- bargaining agreement covering these employees ex- pired April 12. Negotiations for a successor con- tract began in March. The Respondent's final con- tract offer was rejected by the union membership and a strike commenced on April 13. Approximate- ly 230 employees engaged in the strike. Over the next several weeks, the Respondent hired perma- nent strike replacements. This resulted in a total work force on May 1 of approximately 301 em- ployees, including 290 strike replacements, 9 re- turning strikers, and 2 individuals returning from their layoff status. By May 10 the total work force had diminished to approximately 279 employees, thus making a total of approximately 509 employ- ees in the unit. There is no indication from the record that this total of unit employees changed from May 10 through August 26, the date of the Respondent's withdrawal of recognition. On May 1 the Union and the Respondent con- ducted a negotiation session with a Federal media- tor. During this meeting, the Union stated that it would accept one of the Respondent's two alterna- tive final offers if the Respondent would return the strikers to work, giving recognition to their seniori- ty, and lay off as many of the permanent replace- ments as necessary to do so. The Respondent re- jected the Union's proposal and so notified the re- placements by posting a plantwide notice. Then, in late May and early June, the Union requested fur- ther negotiation sessions with the Respondent. The Respondent declined to continue bargaining. No further negotiation sessions were held and the topic of striker reinstatement was not discussed further or pursued by the Union. On May 11 one of the replacements filed with the Board a decertification petition accompanied by a list of 211 employee signatures dated from April 30 through May 5 (R. Exh. 15). In mid-May a copy of this list was provided to the Respondent by employee Theresa Anderson, the petitioner in the decertification case. Although on its face the 289 NLRB No. 40 JOHNS-MANVILLE SALES CORP. list does not indicate its purpose, uncontroverted evidence reveals that Anderson told the Respond- ent that the document was a list of employees who signed the decertification petition. In addition, the General Counsel does not contest the authenticity of the document as the employee list accompany- ing the decertification petition. A few weeks prior to the instant hearing of June 3, 1982, the Respond- ent, for the first time, checked the list of signatures for authenticity. Each signature on the list is num- bered beginning with 1 through 211. Kelly Garrett, the Respondent's employee relations supervisor, testified that approximately seven signatures (num- bered 14, 17, 25, 54, 125, 128, and 182), which she marked with question marks, were illegible. Thus, the Respondent could rely on, at most, 204 signa- tures as evincing repudiation of the Union. In addition, during this period several replace- ments and returning strikers made disparaging comments about the Union to the Respondent's plant manager and two supervisors, Gene Karr and Glen Frisk. Joe Bird, the plant manager, testified that prior to the filing of the decertification petition he spoke individually with three employees: Kay Hallmark, Bob Harrison, and Theresa Anderson. Each asked him how the employees could get rid of the Union. Both Anderson and Hallmark later signed the employee list for the decertification peti- tion (signatures numbered 4 and 116 respectively). Bird also testified that the Respondent held com- munications meetings for the replacements and re- turning strikers during the last week of April or the first week of May. Bird testified that each meeting was attended by approximately 30 or 40 employees, and questions were asked about how to get rid of the Union. Bird only identified certain supervisors and Theresa Anderson by name as having attended those meetings. Thus, the record does not establish how many, if any, of those employees attending the meetings were other than those who the record shows signed the employee list for the decertifica- tion petition, submitted union membership resigna- tions, or were involved in the conversations with certain supervisors discussed below. Plant Engineer Karr, a supervisor, testified that in May he had individual conversations with five replacements: William Dart, James Farmer, Robert Morris, John Parker, and Bill Constant. According to Karr, each replacement said that he did not want or need a union. William Dart and James Farmer also spoke with the foaming department su- pervisor, Glen Frisk, and indicated to him the same disaffection with the Union. Frisk also overheard Bill Constant telling other employees that he did not want the Union. Frisk further testified that during the period of May through July he had sep- 359 arate individual conversations with eight other re- placements, all to the effect that they did not want or need a union. Those replacements involved were James Butlers, Michael Dayton, Bill Rivera, Mike Wood, Darrell Bonds, Jim Swanson, Bill Green, and Charles Hughes. Only Michael Dayton had signed the employee list for the decertification petition (the signature numbered 2). To summarize, the Respondent, through Karr and Frisk, identified by name 12 replacements who expressed opposition to the Union and whose signatures were not also included on the employee list for the decertifica- tion petition. In addition, seven employees submitted to the Respondent copies of written resignations from their union membership. These letters of resigna- tion, dated from April 22 through July 28, were from Frederick J. Valenzuela, Jesse Ramsey, Sam H. Ramsey, Sharon Galleys, Jim Valentine, Jack L. Fetters, and Aaron E. Holloway. Jesse Ramsey, Sam H. Ramsey, Jim Valentine, and Jack L. Fet- ters indicated in their letters that their resignations were due to financial problems.3 In their letters, Sharon Galleys and Aaron E. Holloway did not give a reason for their resignations. In his letter, Frederick J. Valenzuela indicated that he had re- signed his membership and could no longer support the Union due to a "personal belief that the act of violence, harassment [sic] and overall conduct of the labor dispute are negative to any meaningful negotiation." Frederick J. Valenzuela, Jesse Ramsey, and Sam H. Ramsey later signed the em- ployee list for the decertification petition (signa- tures numbered 84, 144, and 145, respectively). During the first 4-5 months of the strike, strikers harassed job applicants and new employees as they crossed the picket line; strikers temporarily blocked their cars, shouted at them, made obscene gestures, and called them "scabs." In addition, a dummy with the word "scab" on its chest was hanged by its neck near the plant entrance. At least 70 cars owned by employees sustained some combination of smashed windows, slashed tires, or body damage. Most of this vandalism occurred while the cars were parked on the Respondent's premises. The home of one employee was burglarized, the word "scab" written on the wall, and furniture stolen. The Respondent paid employees over 3 Jesse Ramsey indicated that he resigned because he was buying a new home and had other financial and family obligations Sam H Ramsey indicated that he resigned because he "had a son and another baby on the way " Jim Valentine indicated that he resigned because he did not support the strike and was "having a lot of family tension as [his] Dad is fighting for his life with brain tumors and [his] wife has a heart condition " Although Valentine indicated he did not support the strike, he did not indicate rejection of the Union as the bargaining representa- tive 360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD $20,000 in compensation for damages related to the strike. At the August 26 hearing on the decertification petition, the Respondent's counsel informed the hearing officer that the Respondent no longer rec- ognized the Union. This was the first announce- ment to the Union that the Respondent had with- drawn recognition. At the instant unfair labor prac- tice hearing, the Respondent claimed that it doubt- ed that the Union had majority status as of May 1 and that subsequent events merely reinforced this doubt. In early September the Union made a formal re- quest, based on California's OSHA regulations, for access to employee medical files and other medical data collected by the Respondent. By letter dated September 16, the Respondent refused to provide this information and reiterated its refusal to recog- nize the Union. On October 29 the Union distributed union hand- bills to approximately 180 to 200 strikers at the picket line at the Respondent's facility. The hand- bills stated that the Respondent withdrew recogni- tion from the Union on May 1 and that the strike was "to protest this and other unfair labor prac- tices." In dismissing the complaint, the judge found that the Respondent did not have sufficient objective factors to support a good-faith doubt of the Union's majority status, but concluded that under Telautograph Corp.4 the Respondent's withdrawal of recognition was lawful because it occurred sub- sequent to the filing of the decertification petition on May 11. In light of -this conclusion, the judge found that the Respondent did not have an obliga- tion to bargain with the Union and that the strike had not been prolonged by any unlawful conduct by the Respondent. In her exceptions the General Counsel contends, inter alia, that the judge erroneously applied Telau- tograph to conclude that the withdrawal of recogni- tion was lawful. The General Counsel argues that the Respondent's reliance on the pending decertifi- cation petition is insufficient, alone or in combina- tion with the other factors asserted by the Re- spondent, to establish a good-faith doubt concern- ing the Union's majority status. The General Coun- sel further contends that, as evidenced by the Union's notice of October 29, one of the purposes of the strike was to protest the Respondent's un- lawful withdrawal of recognition and, thus, the strike was converted to an unfair labor practice strike on October 29. 4 199 NLRB 892 (1972) We agree with the General Counsel's contention that the judge misapplied Telautograph. Contrary to the judge's analysis, the Board in Telautograph did not privilege an employer to withdraw recognition from a union solely based on the existence of a pending decertification petition. The Board there held that an employer must refuse to engage in fur- ther contract negotiations until the question con- cerning representation has been settled by the Board, but the employer remained obligated to deal with the collective-bargaining representative in all other respects, including contract administration and grievance processing.5 Thus, the Respondent here was not privileged to withdraw recognition based solely on the pending decertification petition, although the petition may be relied on as a factor in assessing whether the Respondent had a good- faith doubt concerning the Union's majority status. In this connection, we find that the record evi- dence on which the Respondent relied to support its doubt of the Union's majority status was insuffi- cient to justify withdrawal of recognition for the reasons below. In Station KKHI, 284 NLRB 1339 (1987), the Board recently reaffirmed the essential principles controlling here: Absent unusual circumstances, there is an ir- rebuttable presumption that a union enjoys ma- jority status during the first year following its certification. On expiration of the certification year, the presumption of majority status con- tinues but may be rebutted. An employer who wishes to withdraw recognition after a year may do so in one of two ways: (1) by showing that on the date recognition was withdrawn the union did not in fact enjoy majority status, or (2) by presenting evidence of a sufficient objective basis for a reasonable doubt of the union's majority status at the time the employ- er refused to bargain. As previously indicated, the Respondent's de- fense of its withdrawal of recognition is based on this second method, i.e., reasonable doubt of the Union's majority status prior to August 26. The ob- jective factors presented by the Respondent at the trial to support its reasonable doubt were: its hire of strike replacements; the property damage and harassment of the replacements during the strike; S In Dresser Industries, 264 NLRB 1088 (1982), the Board overruled Telautograph, but only prospectively Accordingly, the Board found that the employer in Dresser had acted lawfully when it relied on Telauto- graph, which was the current law at the time it ceased negotiations Be- cause the Respondent here has similarly relied on Telautograph before that case was overruled, we find that it did not violate Sec 8(a)(5) and (1) by refusing to engage in further contract negotiations pending an elec- tion See Alexander Linn Hospital Assn, 288 NLRB 103, 107 fn 16 (1988) JOHNS-MANVILLE SALES CORP. the decertification petition supported by the em- ployee list of 211 signatures; certain comments by replacements to the plant manager and two super- visors rejecting union representation; the seven union membership resignations ; the Union's May 1 contract proposal demanding the reinstatement of the strikers, after discharging the replacements, if necessary; and the Union's lack of attempts to or- ganize the replacements. We note at the outset that in Station KKHI, supra the Board overruled Pennco, Inc., 250 NLRB 716 (1980), on which the judge relied here. In Sta- tion KKHI the Board held that it would no longer apply a presumption that strike replacements sup- port the union in the same ratio as those shown to have been replaced. The Board also declined, how- ever, to adopt the contrary presumption, urged by the Respondent here, that strike replacements will- ing to cross a picket line to go to work repudiate the union as their collective-bargaining representa- tive. The Board stated that it will not apply any specific presumption concerning the union senti- ments of strike replacements, but will review each case on its facts considering whether the employer has proffered evidence of employees' expressed de- sires to repudiate the union sufficient to overcome the overall presumption of continuing union major- ity. Turning to the facts here, the record falls short of supporting the Respondent's affirmative defense in that it establishes only that prior to August 26 the Respondent was aware that, at most, 217 em- ployees out of a combined total of approximately 509 strike replacements, returning strikers, and strikers had repudiated the Union. For the reasons set forth below, this figure is based solely on the statement from employee Morrison to Plant Man- ager Bird, the comments repudiating the Union made by the 12 employees identified by Supervi- sors Karr and Frisk, and the 204 employees who legibly signed the list for the decertification peti- tion. In arriving at this figure of 217 employees, we reject the other factors relied on by the Respond- ent. First, in Station KKHI, supra at 1344, we held that [T]he hiring of permanent replacements who cross a picket line, in itself, does not support an inference that the replacements repudiate the union as collective-bargaining representa- tive. . . . [A]n employee may be forced to work for financial reasons, or may disapprove of the strike in question but still desire union representation and would support other union initiatives. . . . [To hold that replacements can be presumed to disfavor the union] would dis- 361 rupt the balance of competing economic weap- ons long established in strike situations and substantially impair the employees' right to strike by adding to the risk of replacement the risk of loss of the bargaining representative as soon as replacements equal in number to the strikers are willing to cross the picket line. Consistent with Station KKHI, supra, we will not permit the Respondent to rely on its hiring of re- placements but we "will require `some further evi- dence of union non-support "'6 before concluding that the Respondent had a good-faith doubt of the Union's majority status. Second, we reject the Respondent's contention that further evidence of union nonsupport emanat- ed from the purported strike violence that occurred here.7 The Respondent asserts that various kinds of harassment by the strikers, including the vandalism to the unattended parked cars described above, jus- tify a conclusion of employee rejection of the Union. In support of its contention, the Respondent relies, inter alia, on I T Services, 263 NLRB 1183 (1982), in which the Board considered several fac- tors, including strike violence, to conclude that the employer had an adequate objective basis to sup- port a good-faith doubt of the union's majority status. We find the instant case distinguishable from I T Services in two significant respects. In the instant case, the circumstances surrounding the picketing8 do not rise to the level of the outrageous conduct exhibited in I T Services.9 More importantly given the crucial significance of the Respondent's deci- sion to withdraw recognition, we note that the Re- spondent here had available other, more reliable factors, including the list for the decertification pe- tition and the statements from identified employees, which could have indicated more tangibly majority 6 Station KKHI, supra, quoting NLRB v Pennco. Inc, 684 F 2d 340, 343 (6th Cir 1982) 7 We note in this regard that in NLRB v Randle-Eastern Ambulance Service, 584 F 2d 720 (5th Cir 1978), the court determined that the em- ployer had sufficient objective considerations to support a reasonable doubt of the union's continued majority status . Although the court noted that several returning strikers submitted union resignation letters after crossing the picket line in a fairly acrimonious strike and that the employ- er claimed that six replacements had indicated disinterest in the union or had been victims of picket line violence, the court's decision does not appear to have turned on the mere existence of a purportedly violent picket line as an indication of a lack of union support s We would reach the same conclusion even if we were to accept as true the additional purported violent acts perpetrated by strikers de- scribed in the Respondent's offers of proof, which the judge rejected The judge in I T Services set forth in detail the "pervasive" violence that attended the strike there He noted that some of the violence oc- curred in the presence of the union president or was committed by union picket captains and also noted the apparently racial character of much of the invective The judge concluded that "the level of violence was so high" that employees subjected to it could, in effect , be presumed to reject any association with their perceived "tormentor " 362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employee dissatisfaction with the union and with the alleged violence, but, as we have found, fell short of doing so.10 Third, contrary to the Respondent's position, the Union's striker reinstatement demand on May 1 does not automatically prove that the Union aban- doned the replacements or that the replacements do not have any desire for union representation. In this regard, the Board noted in Station KKHI, supra at 1344, that the incumbent union's primary concern, at least for the duration of the strike, is for the striker's welfare, rather than that of the re- placements, and that the replacements are typically aware of this. The Board, however, refused to impute a lack of union support to the replacements. In this regard, inasmuch as at least an initial demand that all the strikers be reinstated is to be expected in the typical strike situation, to hold that such proposals establish the antiunion sentiments of the replacements and thus support an employer's doubt of union majority would invariably "substan- tially impair the employees' right to strike by adding to the risk of replacement the risk of loss of the bargaining representative." Station KKHI, supra." Such a result would fly in the face of the purposes and policies of the Act.12 Fourth, we observe that six of the membership resignations relied on by the Respondent here indi- cate that they were submitted for financial reasons or do not indicate any particular reason. Valenzue- la's resignation appears to be the only exception. It indicates a possible repudiation of the Union, but Valenzuela also signed the employee list accompa- nying the decertification petition and thus already has been counted among those rejecting the Union. Regarding those indicating financial reasons, the Board has held that membership resignations, which may be submitted for financial reasons, do not establish a renunciation of union representation. For example, in NLRB v. Mar-Len Cabinets, 659 F.2d 995, 999 (9th Cir. 1981), enfg. 243 NLRB 523 (1979), the court agreed with the Board's conclu- sion that employee resignations from the union did not support the employer's asserted good-faith doubt since the employees resigned from the union to avoid potential fines, not to oust the union as a 10 As may be evident elsewhere in this decision, although we need not reach this matter here, the weight we choose to accord to other factors, such as statements from unidentified employees and the request by the Union for the discharge of strike replacements, differs from the weight accorded those factors in I T Services 1 i We note additionally that it is our experience that such union de- mands are often modified as strike settlement negotiations progress 12 See Fall River Dyeing Corp. v NLRB, 482 U S 27 (1987), in which the Supreme Court noted the policy basis for the Board 's continuing pre- sumption of majority status bargaining representative, and . . . they crossed the picket line and returned to work as a means of preserving a continuity of income because of economic necessity, and not be- cause they rejected union representation. We, therefore, conclude that the Respondent's reli- ance on the membership resignations was an insuf- ficient basis for supporting an alleged good-faith doubt of the Union's majority status.13 Finally, we reject the asserted comments made in the presence of unidentified employees at the com- munication meetings described above by Plant Manager Bird. Such comments involved questions from speakers who, except for Theresa Anderson, were unidentified, asking how to get rid of the Union. We decline to speculate on the union senti- ments of the 30-40 employees attending those man- datory meetings solely on the basis of their attend- ance at the meetings. There simply is insufficient evidence to establish that the employees attending, except possibly for Anderson, wanted to repudiate the Union. 114 Moreover, even assuming the uniden- tified employees actually shared Anderson's views, they may have already been considered by the Re- spondent if they signed the employee list for the decertification petition. Accordingly, we find that the evidence does not meet the Board's standards for objective considerations sufficient to support a reasonable doubt of the Union's majority.15 We, therefore, find that the Respondent violated Sec- tion 8(a)(5) and that the strike to protest this un- lawful withdrawal of recognition converted to an unfair labor practice strike as of October 29. 2. Vacation pay: Regarding the issue of the strik- ing employees and vacation pay, the clause con- cerning vacation pay in the parties' expired con- tract was as follows: Employees participating in the vacation plan for the first time shall not be entitled to a va- cation until their anniversary date. Thereafter 11 See also Randle-Eastern Ambulance Service, 230 NLRB 542, 552 (1977) We note also that it is well established that the lack of union membership does not establish a lack of union support See NLRB v Pio- neer Club, 546 F 2d 828 (9th Cir 1976), Retired Persons Pharmacy v NLRB, 519 F 2d 486, 490 (2d Cir 1975), and Terrell Machine Co v NLRB, 427 F.2d 1088, 1090 (4th Cir 1970) 14 See Cain's Generator & Armature Co, 237 NLRB 1198, 1199 fn 7 and 1201 (1978), enfd. 628 F 2d 933 (6th Cir 1980), Lucas County Farm Bureau Cooperative Assn, 218 NLRB 1150, 1151 (1975), enfd 557 F 2d 1227 (6th Cir 1977) 1 s See, e g , Cain 's Generator & Armature Co , supra (the employer un- lawfully withdrew recognition from the union based on statements from no more than 9 of the 23 unit employees that they no longer wished to be represented by the union), Dy-Dee Wash, 228 NLRB 389, 390 (1977) (The employer's reliance on a showing that only three of the seven unit employees expressed their dissatisfaction with the union was an insuffi- cient basis for supporting an alleged good-faith doubt of the union's ma- jonty status ) JOHNS-MANVILLE SALES CORP. employees shall be entitled to a vacation in the calendar year in which their vacation falls, provided that they work sometime during the calendar year for which the vacation is due, or through the month of December of the previ- ous year. An employee's first vacation shall be calculated at 2% of total earnings during their first year of employment. Pay for subsequent vacations shall be calculated at 2% of total earnings during the calendar year prior to the vacation, for each week of vacation, for which the employee is eligible. On May 7 the Respondent paid approximately $200,000 in vacation pay to the striking employees with the notification that such payment represented "all monies due you by the company" under the expired contract. The Respondent's officials testi- fied that the money distributed on May 7 repre- sented a fringe benefit which accrued by virtue of employment in 1980. An additional $52,000 had previously been paid during 1981 to employees re- questing vacation pay before the strike began, again assertedly based on 1980 earnings. On Febru- ary 26, 1982, the Union's business representative sent to the Respondent 168 requests "for payments for vacation earned for . . . members/employees . . . currently on strike." The Respondent did not respond to this request. At the hearing, the Respondent claimed that under its interpretation of the contract provision discussed above, no further payments were due the strikers because they had not worked in December 1981 or, as of yet, in 1982. Uncontroverted evi- dence showed that during 1979 and 1980, 70 or 80 individuals voluntarily terminated their employ- ment, 11 more individuals were laid off, and none of these individuals received vacation pay during the year of his termination or layoff. The General Counsel advanced a different interpretation of this contract provision and asserted that, by February 1982, further payments to the strikers were indeed due because they had worked during 1981. The General Counsel relied on the disposition of a 1970 employee grievance involving Harold Lewis to show that an employee was entitled to vacation pay if he had worked during the year prior to his request. Lewis, who had been laid off in November 1968, sought vacation pay in 1970 because he had received a holiday pay advance in 1969. His griev- ance was denied by the Respondent because he had "performed no work in December 1968 and he per- formed no work in the plant at any time during the calender year of 1969." The judge concluded that the Respondent did not violate the Act by refusing to comply with the requests made for vacation pay in February 1982. 363 In so doing, the judge distinguished Vesuvius Cruci- ble Co., 252 NLRB 1279 (1980), concluding that there the Board had found a violation because the employer had the punitive objective of denying fringe benefits to employees because they went on strike whereas here no such motivation is present. The judge went on to find that the impact on em- ployee rights of the Respondent' s actions was, under the mode of analysis set forth in NLRB v. Great Dane Trailers, 388 U.S. 26 (1967), compara- tively slight as opposed to inherently destructive, and the Respondent had sufficiently justified its action by asserting that it was relying on its inter- pretation of a contract that was, at best, ambigu- ous. We agree with the result reached by the judge for the reasons set forth below. In determining whether an employer's refusal to pay benefits to strikers violates Section 8(a)(3) and (1) of the Act, we have recently applied the princi- ples articulated in Great Dane in Texaco, Inc.16 In Texaco, supra, the Board set forth the following an- alytical scheme for application of the Great Dane test in this context:17 Under this test, the General Counsel bears the prima facie burden of proving at least some adverse effect of the benefit denial on employee rights. The General Counsel can meet this burden by showing that (1) the bene- fit was accrued and (2) the benefit was with- held on the apparent basis of a strike. . . . Once the General Counsel makes a prima facie showing of at least some adverse effect on employee rights the burden under Great Dane then shifts to the employer to come for- ward with proof of a legitimate and substantial business justification for its cessation of bene- fits. The employer may meet this burden by proving that a collective-bargaining represent- ative has clearly and unmistakably waived its employees' statutory right to be free of such 1s 28S NLRB 241 (1987) See also Bil-Mar Foods, 286 NLRB 786 (1987) 17 In Great Dane, supra at 34, which also involved an employer's re- fusal to pay vacation benefits to sinkers , the Supreme Court set forth the following mode of analysis First, if it can reasonably be concluded that the employer's dis- cnmmatory conduct was "inherently destructive" of important em- ployee rights, no proof of antiunion motivation is needed and the Board can find an unfair labor practice even if the employer intro- duces evidence that the conduct was motivated by business consider- ations Second, if the adverse effect of the discriminatory conduct on employee rights is "comparatively slight," an antiunion motivation must be proved to sustain the charge if the employer has come for- ward with evidence of legitimate and substantial business justifica- tions for the conduct Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him [Emphasis in original ] 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD discrimination or coercion. . . . If the employ- er does not seek to prove waiver, it may still contest the disabled employee's continued enti- tlement to benefits by demonstrating reliance on a nondiscriminatory contract interpretation that is "reasonable and . . . arguably correct" [emphasis in original, footnote omitted and thus sufficient to constitute a legitimate and substantial business justification for its conduct. Moreover, as under Great Dane, even if the employer proves business justification, the Board may nevertheless find that the employer has committed an unfair labor practice if the conduct is demonstrated to be "inherently de- structive" of important employee rights or mo- tivated by antiunion intent. Applying this analytical scheme to the facts here, we find that the General Counsel has made a prima facie showing of a violation of Section 8(a)(3) and (1). In this regard, the General Counsel relied on the vacation pay provision in the expired collec- tive-bargaining agreement. This provision, as set forth above, states that "employees shall be entitled to a vacation in the calendar year in which their vacation falls, provided that they work sometime during the calendar year for which the vacation is due." The record reveals that the Union considered this provision to mean that an employee is entitled to vacation payment for a given year, e.g., 1982, provided that the employee worked sometime during the prior year, e.g., 1981. The record also reveals that the employer's stated reasons for re- jecting Harold Lewis' grievance for vacation pay support the Union's interpretation of the vacation pay provision. The General Counsel showed that the vacation benefits were due and payable to the striking employees and had accrued in 1982 when the Respondent withheld payment of them.18 In addition, it is undisputed that the Respondent with- held vacation benefits for strikers while paying such benefits to employees who crossed the picket line and returned to work sometime in 1982. The benefit, therefore, was withheld on the apparent basis of a strike. Consequently, the burden shifts to the Respondent to prove a legitimate and substan- tial business justification for the denial of these va- cation benefits to the strikers. The Respondent's asserted reasons for denying the benefits were its interpretation of the applicable contract provisions and its past practice regarding employees who were absent for reasons other than being on strike. Reliance on such reasons for deny- 18 This does not signify that the Respondent 's interpretation that, ac- cording to the contract's provisions, no further vacation benefits accrued to the striking employees , who had not worked either during December 1981 or at all during 1982, is any less tenable ing benefits to strikers has been held to be a sub- stantial business justification by at least two courts of appeals.19 Moreover, the Respondent's construc- tion of the contract "is reasonable and . . . argu- ably correct"20 and nondiscriminatory. The record reveals, as set forth above, that the Respondent had applied the contract in the same manner on numer- ous past occasions to employees absent for reasons other than participation in a strike .21 Accordingly, we find that the contractual language and past practice provided the Respondent with the neces- sary proof of a legitimate and substantial business justification for its denial of vacation benefits to its striking employees in 1982. Having found that the Respondent established a legitimate and substantial business justification, we must further consider whether the Respondent's denial of vacation benefits can reasonably be found to be "inherently destructive" of important em- ployee rights. The Supreme Court in Great Dane described "inherently destructive" conduct as that which carries with it "`unavoidable consequences which the employer not only foresaw but which 'ie must have intended' and thus bears `its own indicia of intent. 11122 Such conduct has been described as having "far reaching effects which would hinder future bargaining, or . . . discriminated solely upon the basis of participation in strikes or union activi- ty,"23 or that it created "visible and continuing ob- stacles to the future exercise of employee rights."24 Here, as noted above, the Respondent paid a large sum of vacation pay to striking employees in May 1981. At that time, the Respondent informed the Union and the employees of its position that no further payments were due under the terms of the expired agreement. Furthermore, the Respondent's evidence establishing that it had applied the con- tract in the same manner in the past to employees absent for reasons other than striking is essentially uncontradicted. 25 Because of the Respondent's ear- lier payment of benefits to strikers, its expressed re- liance on the contract for its later denial of similar benefits, and its denial of such benefits to nonstrik- ing employees in the past, we find that there has 19 Vesuvius Crucible Co. v NLRB, 668 F.2d 162 (3d Cir 1981); NLRB v Borden, Inc, 600 F 2d 313 (1st Cir. 1979). 80 Texaco, Inc, supra, quoting from Vesuvius Crucible Co. Y. NLRB, supra at 168 21 See Bil-Mar Foods, supra 22 388 U.S. at 33. ss Bit-Mar Foods, supra, quoting from Portland Willamette Co v NLRB, 534 F.2d 1331, 1334 (9th Cir 1976) Accord - Amoco Oil Co, 285 NLRB 918 (1987) 24 Bil-Mar Foods, supra, quoting from Inter-Collegiate Press v NLRB, 486 F.2d 837, 845 (8th Cir 1973) 25 The grounds for denial of the 1970 grievance of Howard Lewis, pre- sumably under the same contract language , are too tenuous a basis for negating the Respondent's evidence of past practice under the contract operative here JOHNS-MANVILLE SALES CORP. been no broad and obvious impact on employee rights as envisioned by the Supreme Court in fash- ioning the term "inherently destructive." The final issue that must be resolved regarding this complaint allegation is whether the General Counsel proved an antiunion motivation for the Respondent's denial of the vacation benefits despite the presence of a business justification for the denial. We conclude that no such motivation has been established. Thus, the Respondent based the denial of benefits on its interpretation of the vaca- tion benefits provision of a contract negotiated well before the strike commenced. Further, there is no evidence that the Respondent was motivated by discriminatory considerations when it agreed to those provisions, which are facially neutral, or when it arrived at its interpretation of those provi- sions. Moreover, as noted above, the Respondent paid approximately $200,000 in vacation benefits to its employees after the strike began. Indeed, such payments tend to militate against a finding that the Respondent's subsequent denial of benefits had an unlawful motivation. In these circumstances, we conclude that the Re- spondent did not violate Section 8(a)(3) and (1) of the Act by denying vacation benefits to strikers in 1982.26 CONCLUSIONS OF LAW 1. By withdrawing recognition from the Union on August 26, 1981, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 2. The strike, which commenced on April 13, 1981, was prolonged by the Respondent's unfair labor practices, described above, and was convert- 26 Chairman Stephens agrees with his colleagues that the Respondent's denial of vacation benefits to strikers in 1982 was not unlawful He would find, however, that the General Counsel failed to establish, prima facie, an adverse effect of the benefit denial on the employees' rights because, in his view, the General Counsel did not show that the vacation benefits were accrued Texaco, Inc, supra. In the first place, as noted above, the contractual eligibility criteria for those benefits were facially neutral-i e, they were defined without reference to the exercise of any Sec. 7 right, including the right to strike Second , unlike the majority, Chairman Ste- phens is persuaded that the Respondent's interpretation of the eligibility criteria was correct, and that the strikers were not entitled to vacation benefits in 1982 because they had not worked either during that year or through December 1981 Thus, under the correct application of facially neutral eligibility criteria, the strikers in this case had not accrued the va- cation rights in question Because the General Counsel has not established a prima facie case under Texaco, Chairman Stephens would dismiss the 8(a)(3) allegation without pursuing the Texaco analysis further However, assuming that the vacation benefits can properly be regarded as having accrued, Chairman Stephens agrees with the majority that the Respond- ent set forth a legitimate and substantial business justification for denying those benefits to the strikers, and that the denial was not inherently de- structive of the strikers' Sec 7 rights See his concurring footnote in Amoco Oil Co, supra, 285 NLRB 918 fn 9 365 ed to an unfair labor practice strike on October 29, 1981. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent to recognize the Union as the exclusive representative of its em- ployees in the appropriate unit. Having found that the Respondent's unlawful withdrawal of recognition of the Union converted the strike to an unfair labor practice strike on Oc- tober 29, 1981, we shall order that all striking em- ployees who were not permanently replaced prior to that date be reinstated, on their unconditional re- quest, to their former jobs or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges previously enjoyed, discharging, if necessary, any replacements hired after October 29; and that the Respondent make such strikers whole for any loss of earnings and other benefits resulting from its failure to reinstate them within 5 days of the unconditional request, with interest, to be com- puted in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and New Horizons for the Retarded.27 Such employees for whom employ- ment is not immediately available shall be placed on a preferential hiring list for employment as posi- tions become available and before other persons are hired for such work. Priority for placement on that list is to be determined by seniority or some other nondiscriminatory test. ORDER The National Labor Relations Board orders that the Respondent, Johns- Manville Sales Corpora- tion, Stockton, California, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize International Associa- tion of Machinists and Aerospace Workers, AFL- CIO, District Lodge No. 115, Local Lodge No. 1549 as the exclusive bargaining representative of the employees in the following appropriate unit. All full-time and regular part-time produc- tion and maintenance employees employed by the Respondent at its Stockton, California fa- E7 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 US C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) 366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cility; excluding all engineering, research, ac- counting, and office clerical employees, profes- sional employees, guards, and supervisors, as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Reinstate, on their unconditional request, all strikers who were not permanently replaced before October 29, 1981, to their former jobs or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges previously enjoyed, dis- charging, if necessary, any replacements hired after October 29, 1981; and make such strikers whole for any loss of earnings or other benefits resulting from its failure to reinstate them within 5 days of their unconditional request in the manner set forth in the remedy section of the decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Stockton, California facility copies of the attached notice marked "Appendix."28 Copies of the notice, on forms provided by the Re- gional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 28 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to recognize International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 115, Local Lodge No. 1549 as the exclusive bargaining representative of our employees in the bargaining unit: All full-time and regular part-time produc- tion and maintenance employees employed by the Company at its Stockton, California facili- ty; excluding all engineering, research, ac- counting, and office clerical employees, profes- sional employees, guards, and supervisors, as defined in the Act. 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 reinstate, on their unconditional re- quest, all strikers who were not permanently re- placed before October 29, 1981, to their former jobs or, if such positions no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights or privileges previ- ously enjoyed, discharging if necessary any re- placements hired after October 29, 1981; and WE WILL make such strikers whole for any loss of earnings or benefits resulting from our failure to re- instate them within 5 days of their unconditional request, plus interest. Such employees for whom employment is not available shall be placed on a preferential hiring list based on seniority, or some other nondiscriminatory test, for employment as jobs become available. JOHNS-MANVILLE SALES CORPORA- TION Charles H. Pernal Jr., for the General Counsel. John D. O'Brien, of Cleveland, Ohio, and James H. Berry, of Los Angeles, California, for the Respondent. Jonathan Siegel, of Oakland, California, for the Charging Party. JOHNS-MANVILLE SALES CORP. 367 DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. This case was heard at Stockton, California, on June 3, 4, and 7, 1982, based on a consolidated complaint alleging that Johns-Manville Sales Corporation, (Respondent), violat- ed Section 8(a)(1), (3), and (5) of the Act by refusing to bargain with International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 115, Local Lodge No. 1549 (Union) as the exclusive collec- tive-bargaining representative of employees in an appro- priate production and maintenance unit through its with- drawal of recognition from the Union and insistence that it no longer represented a majority of employees in that unit, followed by a refusal to tender payment of asserted- ly accrued vacation entitlement of striking employees contrary to past practice and because the strikers joined, supported, or assisted the Union and engaged in concert- ed activities for the purpose of collective bargaining or other mutual aid or protection, and in order to discour- age employees from engaging in such activities or other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection. The consolidated complaint further alleged that since on or about October 29, 1981, a strike described as commencing April 13, 1981, had been in protest of, and then prolonged by, such withdrawal of recognition and, in consequence, the employees engaged in striking became unfair labor prac- tice strikers as of that latter time. On the entire record, my observation of witnesses, and consideration of posthearing briefs, I make the following FINDINGS OF FACT AND RESULTANT CONCLUSION OF LAW Based on a collective-bargaining relationship that has existed since 1958, the applicable labor contract of these parties was last effective from April 10, 1978, to and in- cluding April 12, 1981. Renewal negotiations began in March 1981 with 12 sessions following over approxi- mately the next 30 dzys.' Crucial sessions were held on both April 8 and 9, the former occasion being one at which Respondent made a proposal offering the choice between two economic options. This presentation, as de- scribed by James Owens, Respondent's labor relations manager and chief negotiator, was termed a final offer. Option 1 retained a COLA feature with a proposed gen- eral wage increase of 3 percent annually over a 3-year term, while option 2 contemplated folding the accumu- lated $4.17 hourly COLA into the payroll and setting 14-10-10 as annual hourly rate increase percentages under a new contract. Numerous other features were also included, the chief of which, as described by Manuel Joaquin, union president and negotiating committee member, was a retirement plan deemed highly inad- equate for the membership.2 The parties met again on ' All dates are in 1981, unless shown otherwise 2 Principal union spokesman for the primary course of bargaining was Business Representative Lawrence DeMattei, with Joaquin, Chief Stew- April 9 at Stockton for a day-long session that was en- tered by Federal Mediator Sherman Warady in the early evening. During the course of this meeting, Respondent clarified that its final option 1 had inadvertently failed to show a proposed continuation of existing dental plan benefits and, following this, the Union made a counter- proposal, which was rejected. As had been true the day before, principal spokesmen for the parties were DeMat- tei and Owens, with the latter reiterating that pending options represented a final offer and management intend- ed to operate the plant with or without the then-present work force. On April 10, Joaquin presided over a membership meeting at which contract rejection resulted, primarily because of the distressingly viewed retirement plan offer. A strike ensued on Monday, April 13, at which time the unit's active complement was 228 employees. Another approximately two dozen persons were on layoff at the time. On April 14 Respondent sent union officials and each member of the striking unit a letter reading: Due to the continuing bargaining impasse and the strike, this is to inform you that the company in- tends to implement the company's Option II, first year final offer in its entirety, which was given to the Union on April 8, 1981. Accordingly, the first year offer of a 14% increase on job rates and other language changes will be effective April 21, 1981, and benefits on May 1, 1981 with the exception of any Dental Plan. In addition, the company intends to hire perma- nent replacements for the Stockton, California plant effective on April 21, 1981 unless we have a signed contract by noon on April 20, 1981 If you have any question, please let us know. The following Monday a full-length advertisement was placed under "Employment Opportunities" in the classi- fied section of area newspapers, in which "Permanent Jobs" were prominently announced to be "Available Now" with various maintenance and operating titles and associated hourly rates shown. Other benefits were listed to reflect what, in fact, was Respondent's option 2 offer. The advertisement stated that a labor dispute was in progress at the plant. During the balance of that week approximately 1500 persons were interviewed, and hiring commenced on April 24 in consequence of which 290 persons were newly employed by May 1. Kelly Garrett, labor relations supervisor, testified that under Cain's di- rection she had organized and carried out this hiring process, establishing an initial screening interview phase and a final interview phase between staff members at the plant and "people that we felt we would want to hire " Garrett testified that she had personally interviewed only about five or six applicants, and that she told them, re- calling particularly having done so with Gerald Thorn- hill and Karen Cox, that the positions were permanent. By May 1, nine strikers had returned to work and two individuals also did so from their former layoff status. and Leonard Moreno, and certain rank-and-file employees also present on committee included Plant Manages Joe Wayne Bird and Stockton Man- this negotiating team Other persons comprising Respondent's bargaining ager for Employee Relations Fred Cain. 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD This resulted in a total work force on May 1 of 301 per- sons. By May 10, this total had diminished to 279, in- cluding another prestrike employee who returned to work in early May. On this basis Respondent had re- sumed production operations as traditionally performed here, and had augmented scheduling of work because a strike was then in progress at a sister facility in Long Beach, California.3 The parties' bargaining committees had met again under FMCS auspices at Sacramento, California, on May 1, at which time Directing Business Representative Ray Gable served as principal union spokesman, with Owens in his customary role as chief management representa- tive. Gable sought to then accept the option 2 package, provided Respondent would supplant its replacement work force with striking members of the Union. Owens answered this by saying there were no jobs that re- mained available because the striking work force had been replaced "in its entirety ." Gable argued unavail- ingly that all newly hired personnel should be viewed as probationary employees with job rights subordinate to strikers' seniority.4 The next significant event was filing of a refusal-to- bargain charge by the Union. It was docketed as Case 32-CA-3594 on May 5 and, following investigation, was ultimately dismissed on July 8. Another proceeding close in time was a petition docketed as Case 32-RD-314, filed on May 11 with 211 employee signatures appended in support. The hearing ensued on August 26, in the course of which Respondent's counsel voiced a declination to recognize the Union. Subsequently there was a blanket request by the Union for information from employee medical records and health monitoring data, to which Cain responded by letter dated September 16 that such would only be divulged directly to employees on their authorization. Cain's letter added that his approach was taken because of "challenge" to the Union's representa- tive status, and that no waiver of a previously stated po- sition on the subject should be construed from disclosure to individuals. The initiating letter on this matter, that of DeMattei, dated September 1, had forwarded approxi- mately 120 individual requests of strikers for the same in- formation as he was seeking, and by letter dated Septem- ber 17, Cain sent individual answers to each of these em- ployees. The transmittal letter cautioned each recipient 8 Respondent is a Delaware corporation engaged at Stockton, Califor- nia, in the nonretail manufacture of water pipe and related products, an- nually selling and shipping goods valued in excess of $50,000 directly to customers located outside California. On these admitted facts I find Re- spondent to be an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act, and otherwise that the Union is a labor orga- nization within the meaning of Sec. 2(5) On October 29 certain business changes had resulted in Respondent being wholly owned by the entity called Johns-Manville Corporation, which in turn was wholly owned by a parent corporation newly titled Manville Corporation 4 This description of the May 1 meeting synthesizes testimony of Moreno, Joaquin, Owens, Bird, and DeMattei , but in doing so I credit the actual recollections of Owens and Bird The three other witnesses named were vague, evasive, and unconvincing in their description of how and why the Union pressed such a rather unrealistic position during this May 1 meeting. I also emphasize that by Owens' credited version the Federal mediator had first broached the subject of an employer's entitle- ment to secure permanent replacements for strikers, but coupled that with his concern as a neutral about the fate of "long service employees." to rethink what use they might put the "confidential[ly]" based medical information to, and reemphasized that the Union was "in no way" still recognized as the collective- bargaining representative at the Stockton plant. On October 5 the Regional Director issued a Decision and Direction of Election respecting the RD petition in which certain routine contentions were disposed of, and on this impetus a preelection conference was conducted with the parties on October 25. The projection was to vote all active employees, plus those on strike, in an election set for November 5. On October 22, however, the Union had filed the charge on which this proceeding is in part based, the result of which was to block further proceedings on the RD case. On October 29 the Union distributed a notice to all its striking members that read: Johns-Manville has engaged in unfair labor prac- tices by their withdrawal of recognition from Ma- chinist District Lodge 115 and Local Lodge 1549 on May 1, 1981. Our strike at Johns-Manville is to protest this and other unfair labor practices. A second branch of this case concerns the matter of vacation pay entitlement because this might be assured from contract language taken in conjunction with other circumstances and applicable law. On May 7 Respondent had paid approximately $200,000 in vacation pay to those employees who struck effective April 13, and the trans- mittal of such payments individually notified that it rep- resented "all monies due you by the company" in terms of the recently expired collective-bargaining agreement.5 Article 13 of this agreement prefaced the subject of va- cation pay by language referring to the salutory benefits of "an annual period of rest [being] desirable for the health and well-being of people steadily employed," and then set forth certain operative phrasing in a section 63 as follows: Employees participating in the vacation plan for the first time shall not be entitled to a vacation until their anniversary date. Thereafter employees shall be entitled to a vacation in the calendar year in which their vacation falls, provided that they work sometime during the calendar year for which the vacation is due, or through the month of December of the previous year. An employee's first vacation shall be calculated at 2% of total earnings during their first year of employment. Pay for subsequent vacations shall be calculated at 2% of total earning during the calendar year prior to the vacation, for each week of vacation, for which the employee is eligible. Respondent's Stockton Plant Controller William Bixby testified that the amounts distributed on May 7 represent- ed payment of a fringe benefit accrued by reason of em- ployment during 1980. This explanation was identical to that of Cain, who had himself expressly termed the com- pensation as "based on 1980 earnings." An additional $52,000 had previously been paid during 1981 to em- ployees requesting vacation pay before start of the strike JOHNS-MANVILLE SALES CORP. On February 26, 1982, the Union's then-business repre- sentative Robert Elsholz wrote to Cain enclosing "168 requests for payment for vacation earned for . . . members/employees . . . currently on strike." Taking guidance from superiors Cain made no response to this letter, and when Elsholz telephoned him 2 weeks later to inquire about status of the request, Cain said there would be no response. Cain testified that at the time his influ- encing motivation was the employer's position that no further vacation moneys were due, and that he wished to avoid corresponding with the Union since this seemed to lead to further accusations of unfair labor practice con- duct. Case 32-CA-4377 represents the charge that was promptly filed on this subject. In this context the General Counsel and the Union argue that Respondent has been without objective bases on which to decline continued recognition of the estab- lished collective-bargaining representative for its plant employees, and that the most prominent indicator of this failing is actual testimony of management's industrial re- lations functionaries. The most highly placed of these, Corporate Vice President of Labor Relations Michael Tappin, testified that he was the chief architect of con- tingency planning when negotiations reached their crisis/impasse stage in April, and had determined it was vital for the Stockton facility to remain in production be- cause of the impact of strikes at other west coast loca- tions. Tappin testified that when the strike replacement program at Stockton resulted in a viable work force by very early May, he began to sense or conclude that the Union could not truly still represent a majority of the production and maintenance unit as then constituted. His perspective was formed from total circumstances, includ- ing what was reported to him concerning hostility be- tween strikers and strike replacements at a picket line re- specting the persons of those appearing for work from late April onward, plus the repudiatory position assumed by Gable toward the strike replacements as voiced dunng the May I meeting. Tappin explained that his belief was an inchoate sort of conclusion that gained re- inforcement over summer months as the RD petition un- derwent processing, numerous strike replacements ex- pressed objections to management officials about ever having the Union as their representative, and a generally polarized antipathy arose between strike replacements because of vehicle damage and incessant unpleasantries. From this Tappin believed that the legal position voiced by Counsel John D. O'Brien in the course of RD case hearing procedures on August 26 was simply a reflection of what had become evident from the entire circum- stances of several previous months. This was also the tenor of Owens' testimony. He, too, described the em- ployer's belief as based on the inherent realities of a nu- merically superior work force displaying near-unanimous disdain for the Union, versus the numerically lesser group of strikers who still adhered to the Union by their picketing and other activities. Respondent counters with a contention that objective- ly viewed good-faith doubt factors were in truth present, and that more importantly the issue is controlled by Tel- autograph Corp., 199 NLRB 892 (1972). On this basis Re- spondent argues that a superior rationale is present 369 where under policies of the Act are better fulfilled by permitting a Board-supervised secret ballot election to decide the question whether continued exclusive repre- sentation should be accorded the Union in poststrike cir- cumstances. On the separate vacation pay issue, the General Coun- sel confines itself to an assertion that applicable contract language requires prorata payment for time worked in 1981, viewed in the context of NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). The Union adopts reliance on Great Dane, and looks to the particular evidence of a grievance filed by Harold Lewis in 1970 in which this in- dividual claimed vacation pay based on income received in early 1969 as a "hardship" case advance of such holi- day pay as might be earned by Lewis on a recall to work from layoff. Ultimately Lewis never returned from layoff, in consequence of which his last actual day of work at Respondent's plant was November 15, 1968. A third step disposition denying this grievance was written August 31, 1970, by then Industrial Relations Manager J. E. Gilmore, in which he noted that under presumably identical contract language Lewis had "performed no work in December of 1968 and he performed no work in the plant at any time dunng the calendar year of 1969." Thus the rejection of Lewis' grievance was plainly be- cause while money was paid to him in 1969, it was an isolated special case and not within the intendment of contract language as viewed by the Company. The Union analogizes from this sole past illustration to argue that here the actual active employment by 168 requestees during 3-1/2 months of 1981 is exactly the sort of quali- fying status that Lewis lacked in losing his 1970 griev- ance. Stated otherwise, the Union takes the phraseology of why Lewis' grievance was rejected, and applies it to this situation in contending that a prorata entitlement to vacation pay had vested by the time the April strike commenced, and that it was premature to claim this until at least January 1, 1982, had arrived. In briefing this issue the General Counsel contends that 8(a)(1), (3), and (5) violations have occurred both because of the "inher- ently destructive" principles of Great Dane, and because Vesuvius Crucible Co, 252 NLRB 1279 (1980); Knuth Bros., Inc., 229 NLRB 1204 (1977); and Elmac Corp., 225 NLRB 1188 (1976), are holdings that illustrate why a violation should be found in this situation. The General Counsel emphasizes further that in any event a breach of residual obligation to negotiate in good faith on the sub- ject has been shown, citing Sherwin-Williams Co., 260 NLRB 1231 (1982), and Stokely-Van Camp, Inc., 259 NLRB 961 (1982). Respondent's countering argument is that the Lewis grievance was of such unique and frivolous character that it is meaningless to any resolution of this issue, par- ticularly because the vacation pay clause has never been viewed as entitling an employee to prorata vacation pay when separation from employment occurs in the same calendar year as the active employment. Respondent en- larges on this theory by pointing to contract language saying that the most remote type of qualifying employ- ment requires it to be through the previous December, a standard that is tantamount to saying a hypothetical em- 370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployee would be one continuing his or her employment into the new calendar year for which a new annual vaca- tion benefit would then start. Respondent emphasized that its distribution of money in May included the advice that it represented all that could ever be construed as due strikers from that point in time onward, and Bixby testified without contradiction that during the years 1979 and 1980 approximately 70 or 80 individuals voluntarily terminated their employment and received no vacation pay for earnings received during the calendar year of such termination. Bixby gave one specific example of Steve Botiller, who terminated December 5, 1979, and received no vacation pay for 1979 earnings, having nei- ther claimed such nor had a grievance filed on his behalf. He made the same point that the Union did not grieve any of the described 1979 and 1980 cases, nor did it do so for a particular group of 11 individuals laid off during calendar year 1980 and to whom no vacation pay was tendered based on the actual earnings of that same year. It is evident that the Union's fundamental survival turns on resolution of the chief issue in this case concern- ing consequences of Respondent's admitted refusal to accord further recognition. Given the settled principle of a rubuttable presumption that the Union's established ma- jority status continues,6 analysis proceeds directly to the rule that new employees in a strike situation are pre- sumed to support the incumbent labor organization in the same ratio as those they replace.? The Pennco case re- cently and fully set forth rationale for this principle, dealing expressly with both the instances of strike re- placements who must cross a hostile picket line and strik- ers who return to work. The Board believes that a multi- plicity of personal reasons could influence particular in- dividuals, and these are undiscernible without supporting evidence to qualify the behavior. It was even noted in Pennco that the occurrence of some picket line violence is merely a factor "weakening the presumption of majori- ty status but not alone rebutting it." As a threshold mechanistic view of the situation it must, therefore, be presumed that 226 (the same ratio) re- placement employees are in the Union's column, leaving only 75 against out of the original 301. Allowing further for 7 written resignations or indications of disaffection with the Union, plus the 14 different individuals testified to by Supervisors Gene Karr and Glen Frisk as verbally expressing opposition to the Union, the working arith- metical configuration is still no better than a presumed 205 for and 96 against. With the final adjustment of an estimated 40 persons, at most, described by Bird as having spoken vociferously in group gatherings against the Union, and assuming none of these to be in the 21 adjustees above, the relationship changes to only 165 presumably for the Union, at any time after May 1, and 136 opposed. These calculations, however, were not even conscious- ly involved among Respondent's officials, for Tappin himself, as head theoretician, testified to the belief that 6 Celanese Corp, 295 NLRB 664 (1951). Laystrom Mfg Co, 151 NLRB 1482 (1965), Windham Community Memorial Hospital, 230 NLRB 1070 (1977); Pennco, Inc, 250 NLRB 716 (1980). majority status had departed the Union on May 1, and circumstances at that point in time "obviously" led to "good faith doubt" on the matter. A similar feeling was harbored by Bird, who echoed the May 1 date as that on which an obligation to recognize the Union expired. Owens stopped short of expressly fixing May 1 as the date he believed the Union lost its majority status, but did testify that replacement of a work force was "a pretty good indication" of this consequence. He was not, however, aware of a "conscious" management decision along the line until actually voiced by Counsel O'Brien on August 26. Had Respondent proceeded with typical overt posi- tion-taking consistent with what its functionaries now tes- tify was their belief, this case would have an entirely dif- ferent complexion. The issue requires more searching at- tention, however, for this was not done, and the eventful period before and after May 1 was actually dominated by other considerations. As of April 9 the situation was a classic bargaining confrontation compounded by an em- ployer's keen awareness that an effective strike at the fa- cility would cripple its pipe-producing capacity. This was the critical danger facing Respondent as it adhered to an offer notwithstanding imminent strike action. By April 13 the plantwide strike necessitated a project of re- placing the work force or seeking an accommodation through bargaining. The former course was chosen and from that point onward the mainstream of labor relations activity was to operate a plant, not necessarily negotiate a contract. In essence the last, best, and final offer had been, albeit in option form, just that, and the strike gauntlet was determinedly picked up. Tactically the first step was notification of intent to replace, with a short period for the Union to react. On other fronts the re- placement hiring program was quickly structured and picket line activity anticipated. Notably Tappin made the expectable point that he kept Respondent's pipe division general manager and production manager informed of things,8 and when Respondent chose to seek injunctive restraint against picket line interference with its hiring program, it was equipped to do so as early as April 27, when it secured a certain temporary restraining order.9 The significant point is that just as the Union had every right to commence the strike, Respondent, too, had the concomitant right to operate with replacements as long settled by Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). Once the strike replacement program was underway the only significant dealings between the parties soon thereafter was the May 1 meeting, and here Respondent did nothing more actionable than adhere to s Bird picked up this pattern of communication, testifying to daily con- tact with Pipe Division Production Manager G C Eggleston during all of May 9 On that date a courthouse conversation ensued between Bird and De- Mattei, with the former quoting the latter as pining over loss of a local affiliate because of the "mess" occasioned even after the Company's "very good offer " DeMattei covered this exchange in his own testimo- ny, recalling how he told Bird that Respondent had been grossly short- sighted in his overall economic package in a way amounting to bad-faith bargaining I credit Bird respecting this episode, but find it inconsequen- tial as establishing an objective basis to have doubt concerning the Union's majority, because the entire episode presents nothing more than DeMattei's wistful ruminations JOHNS-MANVILLE SALES CORP its earlier bargaining position. 10 I recognize that Re- spondent seeks some advantage from remarks of Gable, which by crediting the testimony of Bird and Owens, I find to have been those of directly pressing for a reversal of the replacement hiring effort by restoring strikers to work. The fact that seniority provisions of the expired contract were looked to in justification of this request is immaterial, for the newly constituted work force was one that arose from a definite program of hiring perma- nent replacements for strikers. The newspaper advertise- ments prominently offered this characteristic, and I accept Garrett's uncontradicted testimony that it was ex- plained with each person so hired. In an expired contract situation it is debatable that the former 45-day probation- ary period even applied to the replacements, but it can be conceded this particular character of such employ- ment was in the nature of a condition subsequent to per- manence . Thus, without any job or job-related derelic- tion, the individuals would achieve full status in terms of being the sort of replacements contemplated and author- ized under Mackay Radio. The critical change in complexion to this situation came with the RD petition, and I am satisfied that on the basis of what followed Respondent is correct in arguing that Telautograph controls here. Significantly no request for resumed bargaining was raised during the May- August period, and disposition of Case 32-CA-3594 left Respondent shown as free of unfair labor practice con- duct. By the time the RD hearing occurred, there was really no other position to take than that voiced by Counsel O'Brien, for even under newly decided RCA Del Caribe, Inc., 262 NLRB 963 (1982), the overruling of Shea Chemical Corp., 121 NLRB 1027 (1958), in situa- tions of competing unions, does not, in itself, create that much impact on an RD situation. The test here is not, as in traditional Mid- West Piping' I and Shea Chemical situa- tions, whether an employer should continue bargaining with one union in the face of a rival claim, but whether greater policy and institutional interests are served by fulfillment of direct, demystified procedures of an RD petition processed to completion. By late August, and more obviously by mid-September when Cain responded as he did to the health data requests, a crystallized situa- tion was extant in that plant operations were at near- normal levels with an outside surplus group of employ- ees retaining full rights of permanently replaced econom- ic strikers. Much is made of the fact that Telautograph has not been vigorously expanded in the years since it was decid- ed; however, it is equally valid to note that the General 10 Immediately following that meeting Bird had posted a plantwide notice to employees reading* A meeting was held in Sacramento in the office of the Federal Mediation and Conciliation Services between the company and the union The union demanded that the new employees be replaced by the strikers The company rejected this demand in its entirety Contrary to assertions by the General Counsel and the Union , I consid- er this notification a privileged informational item that does not tend to establish animus or any other component of allegations , against Respond- entii Midwest Piping & Supply Co, 63 NLRB 1060 (1945) 371 Counsel may have found no previous vehicle to test its outer limits. Although Telautograph alluded to Shea Chemical, its "clarify[ing]" thrust was to obviate delays in "properly supported decertification petitions" when a violation-free environment was present. Notably in Traub's Market, 205 NLRB 787 (1973), former Chairman Miller enlarged on Telautograph by projecting its salu- tary purpose as allowing "prompt action" through "or- derly election processes" and freeing a nonviolating em- ployer from the "harassment" of an 8(a)(5) proceeding. This thrust was also found in special footnoted clarifica- tion by two members of a Board panel in Cantor Bros., Inc., 203 NLRB 774 (1973), who wrote of an employer "relieve[d]" of the duty to bargain with an incumbent labor organization when an adequately supported decer- tification petition was filed in a context free of employer unfair labor practices.12 Such views fully harmonize with a now-discernible trend to "definitive results which are both predictable and speedy while incentive for pro- tracted litigation is greatly reduced, as is the possibility of disagreement between the Board and the courts" as voiced in Midland National Life Insurance Co., 263 NLRB 127 (1982). For these reasons I hold that Respondent's otherwise imperfect and premature good-faith doubt of the Union's continued majority status was erroneously lacking objec- tively based factors of proof, but that this free-floating smugness did not have actionable characteristics. To gloat is one thing and to act another, and here the Union idly permitted time to pass with the RD petition winding towards fulfillment while it relied exclusively on Case 32-CA-3594 to extricate it. When this failed a new policy reason for elevating the RD proceedings to a con- trolling plane had materialized. Absent the unfair labor practice of unlawfully withdrawing recognition, there could be no change in character to the strike, and I hold that it was not, as alleged, converted to an unfair labor practice strike on or about October 29 nor has it been prolonged by unlawful employer conduct of any kind.13 On the vacation pay issue of this case I am satisfied that the General Counsel has misplaced reliance on Vesu- vius Crucible and related cases, for there the denial of fringe benefit pay by an employer was because employees went on strike or the holdings are clearly distinguishable on their facts.14 This directly punitive objective is not 12 This exact thought finds extension in dictum of Sahara-Tahoe Hotel v NLRB, 648 F 2d 553, 556 (9th Cir 1980), in which the court's opinion reads Thus, the filing of a decertification petition with the requisite 30% showing alone might justify an employer's refusal to bargain with the union 13 It is questionable that a "top-down" declaration of strike character- istics as distributed by the Union on October 29 could in any event show an actual positive link to changed strike nature This is particularly true when the claim is given stilted meaning, as embodied in the original charge in Case 32-CA-3594 in which, as filed May 5, the text of the Union's charge stated that from "its inception" the strike had been "to protest the employer's unfair labor practices " (Tr 583 ) 14 Vesuvius Crucible was denied enforcement by the Third Circuit, 668 F 2d 162 ( 1981) In its reported opinion the court believed " the Board overstepped its authority and seriously misperceived its role," pointing out that the employer's refusal to accord disputed vacation pay to strikers was "reasonable and at least arguably correct " 372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD present here. Similarly it does not assist Respondent to argue that numerous other individuals had not received vacation pay for earnings of the year in which they vol- untarily or involuntarily terminated because strikers only withhold services; they do not terminate employment. This leads the analysis squarely to Great Dane, and with- out requisite evidence showing antiunion animus the question must be whether "inherently destructive" con- duct has occurred, or even if "comparatively slight" impact on Section 7 rights are present, has the employer come forward with legitimate business justification. The situation lacks inherently destructive characteristics, for major strike action was anticipated, ratified, and com- menced without even consideration of the factor. There is, of course, some impact on the strikers by withholding further vacation pay, for this tends to increase the eco- nomic pressure that might permit the strike to last longer than it otherwise might. Respondent, however, has ex- plained, and satisfactorily so in my opinion, that its posi- tion is solely one of contract interpretation as to which it believes nothing further is due. I accept the legitimacy of this explanation, largely because of the very contract lan- guage itself. Fundamentally it is of ambiguous construc- tion, particularly the key central language in which the entitled "calendar year" is qualified by the identical phrase "calendar year." It is a classic infirmity of compo- sition when some meaning to a phrase is attempted by using that very same phrase, and the awkwardness, or worse, of this contractual passage is highlighted by the fact that the General Counsel could not even manage to accurately quote it, having left out the portion "in the calendar year" from the second sentence (G.C. br. at 8).115 More specifically, the purpose of this fringe benefit is to provide respite from the rigors of steady year-round work, a condition no longer present for those who strike. I recognize that about 20 percent of all vacation pay granted even under the Respondent's view of 1981 eligi- bility was based on 1981 earnings of those astute enough to request it in advance. This is but a reflection of the inequities that can arise in a work setting, as with Lewis who in 1969 was bold enough to obtain what others similarly situated did not enjoy. In the last analysis, chosen language is a major controlling factor in a con- tract interpretation dispute,16 and here the clause in question is so lacking in coherence that it may legitimate- ly be resisted, without leading to a result whereby the action constitutes an unfair labor practice as opposed to rather crass rejection of a respectably arguable claim and relegation of the issue to other forums of contract dis- pute. [Recommended Order for dismissal omitted from pub- lication.] 15 Cf. Seeburg Corp., 192 NLRB 290, fn. 1 (1971). 16 The point is illustrated in an arbitral proceeding whereby an em- ployer violated contract provisions stating that "employee's gross earn- ings for the 52 weeks prior to January 1 of the vacation year shall be the basis for computing vacation pay" by excluding a prior year's vacation pay in computing that fringe benefit for a current year Although this employer had computed vacation pay in such a manner for 10 years, the contract language was clear and unambiguous , thus not permitting it to be overridden by extensive past practice in which that union had not ac- quiesced. Huffman Mfg. Co, 49 LA 357 (P. Di Leone).