Allied Industrial Workers, Afl-cio Local Union No. 289, Petitioner, v. National Labor Relations Board, Respondent, Cavalierdivision of Seeburg Corporation and Cavaliercorporation, Intervenor.national Labor Relations Board, Petitioner, v. Cavalier Division of Seeburg Corporation and Cavaliercorporation, Respondent.cavalier Division of Seeburg Corporation and Cavaliercorporation, Petitioner, v. National Labor Relations Board, Respondent, 476 F.2d 868 (D.C. Cir. 1973)

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The vacation period will be set by the Company to fall between June 15th and September 1st. Unless business reasons dictate a specific period the preference of the employees will be followed in choosing the vacation dates.

The dates chosen will be announced not later than May 1st.

Vacations are not cumulative and must be taken, or paid for, during each calendar year.

It is beyond dispute that vacation pay would accrue and become due and payable in lieu of actual vacation. The question presented is whether it accrued prior to October 30, the date when the sums were finally paid, thereby rendering the Company's refusal to pay after successive Union demands potentially violative of Sec. 8(a) (3) and (1). Under any one of several interpretations the answer is indisputably yes, although for reasons which will become apparent it is unnecessary for us to determine the precise date.14 The contract unequivocally limits the dates within which the vacation period must fall-between June 15 and September 1. Thus, once September 1 passed there can be no doubt that the amounts were due and payable. Moreover, since the vacation period of two weeks must fall rather than begin between those dates, the deadline must be considered to fall sometime in mid-August. Finally, we feel it is likely that the pay accrued at an even earlier date. The Company had no authority to reschedule vacations after the May 1 deadline specified in the contract. When it unilaterally made the decision to do so on about July 28 it was in the midst of an economic strike that may well have been anticipated to last well beyond mid-August. The letter itself arguably may have indicated the Company's awareness that a vacation could not be scheduled within the time limits prescribed in the collective-bargaining agreement. Thus, the employees' rights to vacation pay in lieu of actual vacation did accrue prior to October 30.15

The Company next urges that proof of antiunion motive is essential to a violation and that it did not harbor such a motive. The Trial Examiner found that the Company's action of withholding accrued vacation pay had, indeed, been motivated by antiunion purposes. The Labor Board, while not in disagreement with this finding, held that it was unnecessary to reach the issue of motive in light of NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S. Ct. 1792, 18 L. Ed. 2d 1027 (1967). We feel that clarification is merited. In Great Dane Trailers, the respondent company, faced with an economic strike, refused to pay accrued vacation pay to striking employees while announcing its intention to award such benefits to working employees (which it did). A hearing before a trial examiner resulted in a finding that the company's action constituted discrimination in the terms and conditions of employment which would discourage union membership as well as unlawfully interfere with a protected activity, thereby violating Sec. 8(a) (3) and (1). The Labor Board adopted the conclusions but was reversed by the Court of Appeals on the ground that the company may have had any of a number of legitimate business purposes for such conduct. In the process of reversing and remanding with directions to enforce the Board's order, the Supreme Court clarified the appropriate considerations for evaluating an alleged violation of Sec. 8(a) (3):

[S]everal principles of controlling importance here can be distilled. First, if it can reasonably be concluded that the employer's discriminatory conduct was "inherently destructive" of important employee rights, no proof of antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. 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 forward with evidence of legitimate and substantial business justifications for the conduct.

388 U.S. at 34, 87 S. Ct. at 1798. The Company mistakenly argues that since the conduct must be "discriminatory" before it can be "inherently destructive," and since the Company refused to pay accrued vacation benefits nondiscriminatorily to all its employees, then the "comparatively slight" test enunciated in Great Dane Trailers must be applied. The Company then sets forth what it considers to be a "substantial business justification" for its conduct and contends that the Union has failed to successfully refute this evidence with proof of antiunion animus.

The Company misconstrues Sec. 8(a) (3). That section requires "discrimination" as a prerequisite to a violation whether the conduct be "inherently destructive" or "comparatively slight," a point which is absolutely clear in Great Dane Trailers. Not only does the requirement of discrimination not afford a basis for distinguishing between the two standards, but it also fails to afford a basis for arguing that Sec. 8(a) (3) is inapplicable to the facts of this case. The Company argues that all cases relied upon by the NLRB for authority involve a course of conduct which discriminates between strikers and nonstrikers, citing, inter alia, Flambeau Plastics Corp. v. NLRB, 401 F.2d 128, 135 (7th Cir. 1969), cert. denied, 393 U.S. 1019, 89 S. Ct. 625, 21 L. Ed. 2d 563 (1969), and NLRB v. Frick Co., 397 F.2d 956, 961-963 (3d Cir. 1968). It then argues that it did not "discriminate" since it was completely impartial between strikers and nonstrikers. While we agree that the courts above were concerned with unequal treatment of strikers and nonstrikers, we do not consider that to be dispositive. A practice applied uniformly to all employees may be discriminatory and violate the Act just as a discriminatory practice may be held to be perfectly innocuous. Compare American Ship Building Co. v. NLRB, 380 U.S. 300, 312-313, 85 S. Ct. 955, 13 L. Ed. 2d 855 (1965) and United Steelworkers v. NLRB, 405 F.2d 1373 (D.C. Cir. 1968) with NLRB v. Brown, 380 U.S. 278, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965).16 Conduct by an employer which discourages a union activity protected by Sec. 7 may also discourage and discriminate against membership in a labor organization.17

In the present case the Employer conditioned payment of accrued vacation compensation upon cessation of a union-instigated economic strike. It is unnecessary for us to tread the uneasy path between "inherently destructive" and "comparatively slight" discrimination since the Company failed to prove a substantial business justification for its conduct.18 See Great Dane Trailers, supra, and NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S. Ct. 543, 19 L. Ed. 2d 614 (1967). The Company introduced uncontradicted evidence illustrating financial problems which had recently befallen it. However, no testimony was introduced suggesting that the Company was unable to meet the financial burden of the vacation debt. In its simplist form the Company really argues that both sides anticipated economic hardship during the strike and that it was more appropriate for the Union than for the Company to absorb the loss of vacation funds even though the employees were lawfully entitled to them.

B. Suspension and Discharge of Employees

With respect to employees Fletcher,19 Brewer and Snyder, the Trial Examiner found that their purpose in following the automobile driven by Smith was to harass and coerce the riders in that car not to report to work, although he found no acts of physical interference whatsoever between the two vehicles. While the death of Smith was indeed unfortunate, an expert witness was totally unable to attribute it to the car following incident. The Trial Examiner noted that the Company had previously engaged in an unfair labor practice during the course of the strike by its refusal to pay accrued vacation pay, an action which "had an adverse effect . . . not only upon the outcome of the strike and the morale of the strikers, but against the very pocketbooks of the strikers themselves." Applying the doctrine established in Local 833, UAW v. NLRB, 112 U.S.App.D.C. 107, 300 F.2d 699 (1962), cert. denied, 382 U.S. 836, 86 S. Ct. 82, 15 L. Ed. 2d 79 (1965), and NLRB v. Thayer Co., 213 F.2d 748 (1st Cir. 1954), cert. denied, 348 U.S. 883, 75 S. Ct. 123, 99 L. Ed. 694 (1954), he found that the Company had violated Sec. 8(a) (3) and (1). The Board agreed, stating that such conduct, protected by Sec. 7, "while not to be condoned, was not so egregious as to render them unfit for further employment, and that their discharge after the strike was therefore violative of Section 8(a) (3) and (1)."

A similar conclusion was reached with respect to employees Creek and Tarpley, who had shouted obscenities and engaged in other misconduct on the picket line.

[N]ot every incident occurring on the picket line, though harmful to a totally innocent employer, justifies refusal to reemploy a picketing employee for acts that exceed the bounds of routine picketing. Impulsive behavior on the picket line is to be expected especially when directed against nonstriking employees or strike breakers.

Montgomery Ward & Co. v. NLRB, 374 F.2d 606, 608 (10th Cir. 1967). See also Terry Coach Industries, Inc., 166 N.L. R.B. 560 (1967), enforced, 411 F.2d 612 (9th Cir. 1969); NLRB v. Buitoni Food Corp., 298 F.2d 169 (3d Cir. 1962); NLRB v. Efco Manufacturing, Inc., 227 F.2d 675 (1st Cir. 1955), cert. denied, 350 U.S. 1007, 76 S. Ct. 651, 100 L. Ed. 869 (1955); Stewart Hog Ring Co., Inc., 131 N.L.R.B. 310 (1961); Hartmann Luggage Co., 183 N.L.R.B. No. 128 (1970), enforced as modified, 453 F.2d 178 (6th Cir. 1971); and Schott v. Metal Products Co., 128 N.L.R.B. 415 (1960). Finally, while the Trial Examiner found that employee Rollins did engage in a leadership role in conduct that ultimately extended the strike beyond the domain of his immediate employer to one entity doing business with the employer, he held that this was not a boycott within the meaning of Sec. 8(b) (4) (i) (ii) (A) and (B) of the Act. Nevertheless he found that Rollins' discharge was for cause, a conclusion which the Board rejected:

In all the circumstances, we find that Rollins' conduct . . . while not to be condoned, was not so egregious as to render Rollins unfit for further employment . . . .

While it is true that the Board offers little support for its conclusion, we note that not present here are any remarks or materials disparaging the quality of products of the employer which might bring the case within the rationale of NLRB v. Local 1229, IBEW, 346 U.S. 464, 74 S. Ct. 172, 98 L. Ed. 195 (1953). Nor was the handbill distributed at Union headquarters attributed to Rollins. Furthermore, the record fails to show whether any of the vending machines manufactured by the Company after the strike began were used by the Chattanooga Coca-Cola Bottling Company, nor does it show whether Rollins participated in the only march which directly involved a bottling plant.20

Clearly some types of impulsive behavior must have been within the contemplation of Congress when it provided for the right to strike. See NLRB v. Wichita Television Corp., Inc., 277 F.2d 579, 585 (10th Cir. 1960), cert. denied, 364 U.S. 871, 81 S. Ct. 113, 5 L. Ed. 2d 93 (1960); NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965). It is not unusual to become involved, as we are today, in balancing the employees' right to organize and bargain collectively against the employer's right to maintain order and respect and the public's right to safety. See, e. g., Local 833, UAW, supra, 300 F.2d at 703 n. 10 and NLRB v. Thor Power Tool Co., supra, 351 F.2d at 58. This involves consideration of such opaque factors, many of which depend upon a sifting of conflicting testimony in an attempt to envision the totality of circumstances, as whether the misconduct "is so violent or of such serious character as to render the employee unfit for further service," NL RB v. Illinois Tool Works, 153 F.2d 811, 816 (7th Cir. 1946); whether such misconduct constitutes "a trivial rough incident" or occurs in "a moment of animal exuberance," Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 293, 61 S. Ct. 552, 85 L. Ed. 836 (1941); whether the employer's unlawful acts were serious or provocative, Local 833, UAW, supra, 300 F.2d at 703; and whether reinstatement would effectuate the policies of the Act, id. at 703. As the court in NLRB v. Thor Power Tool Co., supra, 351 F.2d at 587, aptly summarized:

Initially, the responsibility to draw the line between these conflicting rights rests with the Board, and its determination, unless illogical or arbitrary, ought not be disturbed.

We find that the Labor Board's conclusions in these matters were neither arbitrary nor illogical and, with one exception, decline to comment further.

The one particularly troublesome matter involves the suspension two days after the car following incident of employees Fletcher, Snyder and Brewer "pending investigation for misconduct." While the suspension letter indicated no specific reason for such action, the Company concedes that it was largely meant "to advise the Company's other employees . . . that misconduct resulting in death would not be tolerated . . . ."21 The fact that the resulting death was apparently the primary reason for suspension leads us directly to the case of NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 85 S. Ct. 171, 13 L. Ed. 2d 1 (1964). In Burnup & Sims it was incorrectly brought to the employer's attention that two employees who were attempting to organize the respondent company's plant had threatened to dynamite the plant if they did not receive collective bargaining authorization. They were forthwith discharged. After finding that the employees were engaged in an activity protected by Sec. 7, the Court held:

Over and again the Board has ruled that Sec. 8(a) (1) is violated if an employee is discharged for misconduct arising out of a protected activity, despite the employer's good faith, when it is shown that the misconduct never occurred. . . .

That rule seems to us to be in conformity with the policy behind Sec. 8(a) (1). Otherwise the protected activity would lose some of its immunity, since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees.

379 U.S. at 23, 85 S. Ct. at 172. Here the employees in question were alleged to have engaged in what may be characterized as two types of misconduct: First, merely following the Smith automobile; second, and more seriously, engaging in activity which "result [ed] in death." It was for the latter reason that they were suspended, yet it later became clear that Smith's death could not be attributed to these employees. As in Burnup & Sims the Company had acted under a good faith mistake of fact, and that case therefore controls.

The Company urges us to distinguish Burnup & Sims on the ground that the employees there, unlike here, were engaged in activities protected by Sec. 7.Compare NLRB v. Laney & Duke Storage Warehouse Co., 369 F.2d 859, 865-866 (5th Cir. 1966) with NLRB v. Big Three Welding Equipment Co., 359 F.2d 77, 84 (5th Cir. 1966). While some confusion is understandable in light of the Board's order, its conclusion is nevertheless deducible and contrary to the Company's contention. The trial examiner apparently concluded that the three employees were not engaged in protected activity, a finding which was rejected by the Board. Although the Board addressed only the issue of whether Sec. 8(a) (3) and (1) had been violated by the discharge of the employees when it held that the discharge was "in contravention of their rights under Section 7," it could not in the next breath consistently conclude that the employees were disassociated from Sec. 7 rights for purposes of the suspension. Having concluded that Fletcher, Brewer and Snyder were not disassociated from Sec. 7 activities during the car following incident, we find the outcome to be controlled by the rational espoused in Burnup & Sims -i. e. the suspension of the three employees pending investigation was a violation of Sec. 8(a) (1) of the Act.

We similarly reject the argument that the present case is distinguishable from Burnup & Sims in that the Board here found that the employees were engaged in misconduct, but not misconduct so egregious as to render them unfit for further employment. While we do not hold that all misconduct insufficient for dismissal is prima facie insufficient for suspension under the Burnup & Sims rationale we do note that the only other "misconduct" in which the three participated was that of following an automobile at 30 to 40 feet with no attempt to interfere or communicate. Thus, even assuming that this was the "misconduct" for which they were suspended rather than the fact that an employee coincidentally met his death, we find it insufficient to merit suspension for cause.

C. Refusal of the Company to Bargain and Events that

Followed

The Company refused to comply with the Union's December 2 request for further bargaining, stating as grounds therefor that a decertification petition was then pending with the National Labor Relations Board. Indeed, such a petition had been filed by an unknown number of dissident employees on December 1, although it was immediately suspended by the Board pending the outcome of the unfair labor practice proceeding.

The Union was originally certified in 1955 and recertified in 1962 as well as by subsequent execution of a series of collective-bargaining agreements. After its first year of certification a rebuttable presumption of the union's majority status exists. Unless the employer can prove that the union in fact no longer enjoys a majority, it can only overcome the presumption upon a showing of "sufficient evidence to cast serious doubt on the union's continued majority status." Stoner Rubber Co., Inc., 123 N.L.R.B. 1440, 1445 (1959). The pertinent standard has been interpreted to require both a reasonable basis in fact for the doubt and good faith by the employer. See, e. g., Lodges 1746 and 743, IMW v. NLRB, 135 U.S.App. D.C. 53, 416 F.2d 809, 812 (1969), cert. denied, 396 U.S. 1058, 90 S. Ct. 751, 24 L. Ed. 2d 752 (1969); NLRB v. Frick Co., 423 F.2d 1327, 1330 (3d Cir. 1970). The naked showing that a decertification petition has been filed, with no indication of the number of signatories or other related matters, is an insufficient basis in fact for refusing to bargain since it establishes no more than that the petition was supported by the requisite 30% "showing of interest." Wabana, Inc., 146 N.L.R.B. 1162, 1171 (1964). In the present case the Employer attempted to bolster this evidence by testifying that on December 4, the date on which it refused to bargain, more persons were crossing the picket line to work than were striking. It has been held time and again, however, that an employee's return to work during a strike does not provide a reasonable basis for presuming that he has repudiated the union as his bargaining representative. See, e. g., NLRB v. Easton Packing Co., 437 F.2d 811, 814 (3d Cir. 1971); NLRB v. Frick Co., supra, 423 F.2d at 1333-34; and NLRB v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1091 (8th Cir. 1969). Compare Terrell Machine Co. v. NLRB, 427 F.2d 1088, 1090 (4th Cir. 1970), cert. denied, 398 U.S. 929, 90 S. Ct. 1821, 26 L. Ed. 2d 91 (1970). Absent supporting evidence it may mean no more than that he was forced to return to work for financial reasons or that he did not support the strike in question. See, e. g., NLRB v. Frick Co., supra, 423 F.2d at 1333. Finally, the Employer's testimony to the effect that he had personal knowledge of "overwhelming sentiment" against the Union, with no indication of the number or identity of workers expressing such views nor any other corroboration, is no more than a "self-serving assertion," NLRB v. Little Rock Downtowner, Inc., supra, 414 F.2d at 1091, which adds nothing to the preceding evidence. While we must consider the totality of such evidence in determining whether the employer had a reasonably grounded good faith doubt as to the Union's majority status, we note that on two previous occasions within the course of the strike the Employer had engaged in unfair labor practices: First, by withholding accrued vacation pay; and second, by suspending employees Fletcher, Brewer and Snyder. As found by the Trial Examiner and supported by the evidence, these actions contributed to the loss of Union support and, when considered with the foregoing, preclude any possibility that the Company maintained a good faith doubt as to the Union's continued majority status. See NLRB v. A. W. Thompson, Inc., 449 F.2d 1333, 1336 (5th Cir. 1971), cert. denied, 405 U.S. 1065, 92 S. Ct. 1497, 31 L. Ed. 2d 795 (1972). We note additionally that refusal to furnish the Union with information essential to its bargaining obligation is yet another indication of bad faith. United Steelworkers v. NLRB, 132 U.S.App.D.C. 103, 405 F.2d 1373 (1968). We think the Board's conclusion that the Company violated Sec. 8(a) (5) and (1) of the Act by refusing to bargain on and after December 4 is amply supported by the record.22

D. Conversion into an Unfair Labor Practice Strike

The Board found that by refusing to bargain with the Union on December 4, 1969, in violation of Sec. 8(a) (5) and (1) of the Act the Employer prolonged the strike and consequently it converted as of that date into an unfair labor practice strike.23 It is undisputed that the strike was economic in nature at its outset. The Union takes issue with the standard applied by the Board in determining which of several unfair labor practices converted the strike. The Union, relying upon an isolated passage from Teamsters Local 992 v. NLRB, 138 U.S.App.D.C. 312 427 F.2d 582 (1970), contends that a strike is converted if the unfair labor practice in question merely "aggravates" rather than "prolongs" it. The issue involved in Teamsters Local 992 was whether substantial evidence supported the Board's finding that a unilateral decision by the employer to increase wages by fourteen cents per hour converted an economic strike into an unfair labor practice strike. While it is true that the court referred to "aggravate" and "prolong" disjunctively, reliance upon such usage is misplaced as the following passage indicates:

" [W]here a strike which initially involved no unfair labor practice is prolonged or aggravated by an employer's unfair labor practice, the same rule applies as where the strike is the result of an unfair labor practice, and the employer is bound to reinstate all strikers . . . ."

Once it is shown that an employer's unfair labor practice is a significant factor in a strike, the burden is "on the Company to show that the strike would have continued even if it had [not committed its unfair labor practice]."427 F.2d at 587. Thus, it is abundantly clear that the court in Local 992 was concerned with the effect of such practices on the longevity of the strike and not merely with whether the unfair labor practices aggravated the strike. This is consistent with the great weight of authority.

It has been uniformly ruled and is now well settled that to entitle employees to reinstatement because of unfair [labor] practice of the employer, after a strike has been declared, it must appear that the practice prolonged the strike; and this necessarily follows from the fact that only then can it be that any part of the unemployment for which reinstatement is the remedy has resulted from a violation of the Act.

NLRB v. James Thompson & Co., 208 F.2d 743, 749 (2d Cir. 1953) (footnote omitted). Accord, Electrical Workers Local 613 v. NLRB, 328 F.2d 723, 726 (3d Cir. 1964); Drivers Local 662 v. NLRB, 302 F.2d 908, 911 (D.C. Cir. 1962), cert. denied, 371 U.S. 827, 83 S. Ct. 48, 9 L. Ed. 2d 65 (1962); NLRB v. Jackson Press, Inc., 201 F.2d 541, 546 (7th Cir. 1953). Having concluded that the Board applied the appropriate standard, we find the Board's determination that the strike was, in fact, prolonged by the refusal to bargain to be supported by substantial evidence on the record as a whole.24 NLRB v. Frick Co., 397 F.2d 956, 964 (3d Cir. 1968). We therefore conclude that the order of the Board should be modified with regard to the suspension of employees Fletcher, Brewer and Snyder in accordance with this opinion, and so modified we grant the Board's application for enforcement of its order.

Sitting by designation pursuant to 28 U.S.C. § 291(a) (1970)

29 U.S.C. § 151 et seq. (1970)

The decision and order of the threemember panel of the National Labor Relations Board, empanelled pursuant to Sec. 3(b) of the National Labor Relations Act, 29 U.S.C. § 153(b) (1970), is reported at 192 N.L.R.B. No. 37 (1970)

During the course of the proceedings before the Labor Board, Cavalier Division of Seeburg Corporation ceased to exist and Cavalier Corporation, which had previously been a sales branch, assumed its obligations and operations. There is no issue raised as to successorship and for purposes of this appeal they are treated as one and the same party

Both parties concede that the impediment to negotiations was a combination of the Company's recent financial problems and the effect of inflation on the employees' real wages

The Company's practice was apparently to close down the entire plant for the twoweek vacation period so that all employees, save a skeleton maintenance crew, would be on vacation at the same time

With regard to employee Fletcher, see note 19, infra

While Rollins was a past president of Local 289 and was still considered to be a leader by many union members, he apparently no longer held any union office

In fact the Company engaged in the manufacture of soft drink vending machines which are purchased by the various Coca-Cola bottling companies throughout the United States

The letter refers to a petition for decertification filed by some dissident union members which raised certain questions concerning representation. The petition was immediately suspended pending the outcome of the present proceedings before the NLRB

29 U.S.C. § 158(a) (1970) provides in relevant part:

(a) It shall be an unfair labor practice for an employer-

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.

29 U.S.C. § 158(a) (3) (1971) provides in relevant part:

(a) It shall be an unfair labor practice for an employer-

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .

Most significantly, the Company was ordered to cease and desist from those activities which were held to be violations and to offer reinstatement to the six discharged employees at the same or substantially equivalent positions with certain rights to back pay; to do the same for all employees who were on strike after December 4, 1969, on whose behalf an unconditional request for reinstatement was made by the Union; to make such employees whole for any loss of earnings suffered from February 12, 1970; and, upon request, to bargain collectively with Local 289 as the exclusive bargaining representative of the employees and make available to it certain information

The relevant clause is as follows:

Article 9, Section 1. An employee will be entitled to 1 week of vacation pay each year upon completion of 1 year of continuous service and 2 weeks of vacation pay for each year upon completion of 5 years of continuous service provided he has worked 1040 hours in the twelve-month period prior to the vacation date and is in the Company's employ at the time the vacation period begins.

See also Sec. 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1970); and NLRB v. C & C Plywood Corp., 385 U.S. 421, 427, 87 S. Ct. 559, 17 L. Ed. 2d 486 (1967)

The Company asserts as authority for its interpretation of the clauses in question a 1962 strike of 5 weeks duration wherein the Company rescheduled vacations. Not only was that situation dissimilar from the present one in several respects, but we also feel it is of little value since the terms of the 1966 contract are clear and unequivocal in this respect and since we do not consider one dissimilar situation occurring seven years prior to this dispute to establish "past practice." The further argument that the Union somehow acquiesced in this interpretation prospectively by failing to bring an unfair labor practice charge in 1962 is devoid of any merit

See also Wonder State Manufacturing Co. v. NLRB, 331 F.2d 737, 738 (6th Cir. 1964); Majestic Molded Products, Inc. v. NLRB, 330 F.2d 603, 606 (2d Cir. 1964); NLRB v. Frick Co., 397 F.2d 956, 962-963 (3d Cir. 1968); and Texaco, Inc., 179 N.L.R.B. 989, 993 (1969). See generally Christensen and Svanoe, Motive and Intent in the Commission of Unfair Labor Practices: The Supreme Court and the Fictive Formality, 77 Yale L.J. 1269 (1968)

Here, when the vacation pay demands were first made and refused, virtually all of the plant personnel were out in support of the strike and no serious effort was made to keep the plant in operation. The refusal to pay, as found by the Trial Examiner and not refuted by the Board, was discriminatorily motivated. The fact that it was ultimately paid and paid to both strikers and nonstrikers does not remove the discriminatory taint-it was paid at a time when, according to the testimony of the Company, more individuals were working than striking and the plant was substantially operational once again. At that point the Company was obviously less concerned with the strikers than with satisfying and retaining the services of former strikers

Indeed, even if the Company had succeeded in such an assertion it would still be held to have violated Sec. 8(a) (3) and (1) on the basis of the Trial Examiner's conclusion, unrefuted by the Board's holding and supported by substantial evidence on the record as a whole, that the Company possessed the requisite antiunion motive to overcome a showing of substantial business justification. Moreover, even were we to accept the Company's logic and find no "discrimination" within the meaning of Sec. 8(a) (3), the Trial Examiner's findings with respect to motive would support an independent violation of Sec. 8(a) (1). See, e. g., NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S. Ct. 457, 11 L. Ed. 2d 435 (1964)

Actually, Fletcher was discharged by letter dated April 14, 1970, for certain picture-taking activities on the picket line. This, of course, makes it quite impossible for him to have been discharged again on August 10, 1970, for participation in the car following incident, absent an intervening reinstatement. The Board, affirming the Trial Examiner, held that the initial discharge of Fletcher was violative of Sec. 8(a) (3) and (1) of the Act since it was not the type of conduct which warrants refusal to reinstate, a conclusion which is not challenged in this appeal. The Company does contend, however, that had it not suspended Fletcher for the picture-taking activities, it would have suspended him for the car following activities. We are not permitted to review hypothetical issues and hence are forced to limit our holding to the discharge of Brewer and Snyder, although we do note that absent circumstances which distinguish Fletcher's conduct from that of the former two individuals, we cannot comprehend how such a discharge could be considered to be innocuous

Rollins denied participation in that march

Brief for Cavalier Division of Seeburg Corp., and Cavalier Corp. at 36

Having found that the Company was obligated to bargain with the Union, we similarly hold, in agreement with the Board and the Trial Examiner, that failure to furnish to the Union, upon request, information necessary to fulfill its bargaining obligation resulted in an additional violation of Sec. 8(a) (5) and (1). See Kayser-Roth Hosiery Co., Inc., v. NLRB, 447 F.2d 396 (6th Cir. 1971)

The issue, of course, is of significance to the parties in that unfair labor practice strikers are entitled to reinstatement regardless of whether the employer has replaced them, Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278, 76 S. Ct. 349, 100 L. Ed. 309 (1956), while economic strikers are entitled to reinstatement only if they have not been permanently replaced, NLRB v. MacKay Co., 304 U.S. 333, 346, 58 S. Ct. 904, 82 L. Ed. 1381 (1938)

The Board, affirming the Trial Examiner, also found that the employer violated Sec. 8(a) (3) and (1) by repeatedly refusing to accept the Union's unconditional offer on behalf of its employees to return to work, but instead insisting upon information to which it had no legal right. We affirm for reasons clearly set out in our recent decision of Retail Store Union v. NLRB, 466 F.2d 380, 385 (D.C. Cir. 1972)