USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 95-1727
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
HARDING GLASS COMPANY, INC.,
Respondent.
____________________
ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
____________________
Before
Selya, Circuit Judge, _____________
Aldrich and Coffin, Senior Circuit Judges. _____________________
____________________
Charles Donnelly, Supervisory Attorney, Joseph J. Jablonski, ________________ ____________________
Jr., Attorney, Frederick L. Feinstein, General Counsel, Linda ___ _______________________ _____
Sher, Associate General Counsel, Aileen A. Armstrong, Deputy ____ _____________________
Associate General Counsel, for petitioner.
Robert Weihrauch for respondent. ________________
____________________
March 27, 1996
____________________
COFFIN, Senior Circuit Judge. The National Labor Relations ____________________
Board seeks enforcement of its order finding that Harding Glass
Company committed a series of unfair labor practices and that an
economic strike against the Company was converted to an unfair
labor practice strike following Harding's unilateral
implementation of its final offer. We affirm most of the Board's
order but conclude that the record lacks substantial evidence to
support its finding that the strike was converted. We therefore
grant in part, and deny in part, the Board's application for
enforcement.1
I. Background __________
Harding Glass ("the Company") is a small business in
Worcester, Massachusetts that specializes in auto glass
replacement, small construction and other similar glass-related
projects. In mid-1993, when the events relevant to this case
began, the Company employed three glassworkers and two glaziers.
The glaziers were more highly paid and performed more skilled
work. The Company and the Union that represented these five
workers, Glaziers Local 1044 of the International Brotherhood of
Painters and Allied Trades, AFL-CIO ("the Union"), had a
____________________
1 The Company does not challenge several of the Board's
findings of violation of 8(a)(1) of the National Labor
Relations Act, 29 U.S.C. 158(a)(1), including that (1) it
interfered in the Board's investigation of unfair labor practice
charges; (2) that it threatened employees with discharge and
promised them higher wages in order to discourage them from
supporting or remaining members of the Union; (3) and that it
encouraged and assisted employees in the filing of a
decertification petition.
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longstanding collective bargaining arrangement through a multi-
employer association, the GlassEmployers Group of Greater Boston.
The most recent agreement signed by the Company and the
Union had an expiration date of October 16, 1993. On June 30,
the Company's president, Mark Goldstein, notified the Union that
he wished to negotiate a separate agreement to replace the group
contract that was expiring. Goldstein was concerned that his
company was not competitive in the Worcester area because other
glass shops there were not paying the much higher Union wage and
benefits.
The Union agreed to negotiate separately, and three
meetings, each lasting about one hour, eventually were held. The
Company proposed a one-year agreement that included substantial
reductions in wages and benefits for the glaziers and an increase
in the top rate for glassworkers, but with cuts in their benefits
as well. During the discussions, the Union's business manager
suggested techniques for cutting the Company's costs, the most
significant of which involved using the lower-paid glassworkers
to do much of the work that the Company currently was paying
glaziers to do. Goldstein maintained that he could not rely on
glassworkers to do the skilled work normally done by glaziers.
On October 17, the glaziers rejected the Company's offer and
voted to strike and establish a picket line, which they did the
next day. The three glassworkers did not attend the meeting
scheduled to discuss the Company's proposal to them, but they
agreed not to cross the glaziers' picket line. The message sent
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to the Company rejecting its offer stated that the Union was
"ready and willing to continue negotiations."
On October 22, Goldstein met with the three glassworkers and
offered them the terms that had been contained in his proposal to
the Union. The same day, the third negotiating session took
place. No new proposals were made, but the parties again
discussed the Union's suggestion that the Company use
glassworkers for most of its business and rely on the Union
hiring hall to provide glaziers when necessary. The business
agent testified that the meeting ended with Goldstein saying that
he would think about the Union's proposal and get back to him
about it.
The next day, however, Goldstein rejected the Union's
approach as "unacceptable," and announced that the Company was
implementing its final offer -- i.e., its original offer. The
three glassworkers resigned from the Union and returned to work
under the terms the Company had offered the Union: a small hourly
wage increase, no pension and annuity benefits, modified health
benefits, and fewer holidays.
No further negotiating sessions were held. The picket line
remained in effect through December and, so far as the record
indicates, the strike has to this date not been settled. The
Union filed unfair labor practice charges against the Company,
and, following a two-day hearing, an ALJ found multiple
violations of the National Labor Relations Act and also
determined that the strike was converted from an economic strike
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to an unfair labor practice strike. The Board, with minor
modifications, affirmed.
On appeal, Harding challenges only two of the unfair labor
practice findings: that Goldstein threatened employees with a
shutdown of the business if they did not get rid of the Union and
that the Company unilaterally implemented changes in employment
conditions in the absence of a valid impasse in bargaining. The
Company also contends that the record fails to demonstrate that
the strike was prolonged by any of its conduct, and it therefore
urges us to reject the finding of an unfair labor practice
strike.
We find no basis for disturbing the Board's determination
with respect to either of the unfair labor practice charges, and
believe that the ALJ's discussion, as modified by the Board's
decision and Order, adequately addresses these issues.2 Our
review of the record, however, persuades us that the finding of a
____________________
2 We note that, with respect to the alleged threats to close
down the business, Dana Whitney, Charles Jones and James Tritone
testified that such statements were made to them. See Tr. at ___
127, 205, 220. The ALJ evidently did not credit Goldstein's
assertion that he made only lawful complaints about how the high
union wages made him non-competitive. "Such credibility
determinations, of course, are for the Board rather than for us
to make, and they stand unless beyond the `bounds of reason.'"
NLRB v. Magnesium Casting Co., 668 F.2d 13, 21 (1st Cir. 1981) ____ ______________________
(citation omitted). See also The 3-E Company v. NLRB, 26 F.3d 1, ___ ____ _______________ ____
3 (1st Cir. 1994).
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strike conversion cannot be sustained.3 We discuss this issue
in the following section.
II. Discussion: Conversion of the Strike ____________________________________
It is well-established that "[a] strike begun in support of
economic objectives becomes an unfair labor practice strike when
the employer commits an intervening unfair labor practice which
is found to make the strike last longer than it otherwise would
have," Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1079 ___________________________ ____
(1st Cir. 1981). Causation is crucial: "It must be found not
only that the employer committed an unfair labor practice after
the commencement of the strike, but that as a result the strike
was `expanded to include a protest over [the] unfair labor
practice[],' and that settlement of the strike was thereby
delayed and the strike prolonged." Id. at 1079-80 (citations ___
omitted).
The General Counsel bears the burden of proving causation,
and the Board's finding of conversion must be supported by
substantial evidence. Id. at 1080. Mere conjecture will not ___
____________________
3 The nature of the strike determines the reinstatement
rights of striking employees once the work stoppage ends. An
employer may refuse to reinstate economic strikers who have been
permanently replaced during the strike. Unfair labor practice
strikers are entitled to unconditional reinstatement, absent a
contractual or statutory provision to the contrary, and are
entitled to back pay even if they have been replaced during the
strike. See General Indus. Employees Union Local 42 v. NLRB, 951 ___ _______________________________________ ____
F.2d 1308, 1311 (D.C. Cir. 1991); Soule Glass and Glazing Co. v. ___________________________
NLRB, 652 F.2d 1055, 1105 (1st Cir. 1981). ____
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suffice. Facet Enterprises, Inc. v. NLRB, 907 F.2d 963, 977 ________________________ ____
(10th Cir. 1990). "[T]o sustain a finding of conversion, there
must be some evidence in the record that the . . . employees
reacted to information of [the unfair labor practice]
substantively in a fashion which aggravated or prolonged the
strike." Id. It need not be shown, however, that the employer's ___
unfair labor practice was the sole or even the primary factor in
aggravating the strike, but only that it was "a contributing
factor," NLRB v. Moore Business Forms, Inc., 574 F.2d 835, 840 ____ ___________________________
(5th Cir. 1978).
Both objective and subjective factors may be
probative of conversion. Applying objective criteria,
the Board and reviewing court may properly consider the
probable impact of the type of unfair labor practice in
question on reasonable strikers in the relevant
context. Applying subjective criteria, the Board and
court may give substantial weight to the strikers' own
characterization of their motive for continuing to
strike after the unfair labor practice. Did they
continue to view the strike as economic or did their
focus shift to protesting the employer's unlawful
conduct?
Soule Glass, 652 F.2d at 1080. ___________
Applying these principles to the present case renders us
unable to sustain the finding of conversion. The ALJ's
discussion of this issue comprised a single brief paragraph
within a three-page analysis of the Company's conduct. The
decision stated in conclusory language that the Company's
unilateral implementation of its final offer, together with its
unlawful threats, promises and support of a decertification
petition, "must" be found to have prolonged the strike, and
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converted it "to one which must be deemed an unfair labor
practice strike." ALJ Op. at 9.4
The Board affirmed the finding of conversion, but limited
the basis for that determination to the Company's unlawful
implementation of its last offer:
Because the Respondent's initial bargaining proposal
contained significant reductions in the compensation
paid glaziers and caused them to strike on October 18,
we conclude that the unlawful implementation of these
very changes had a reasonable tendency to prolong the
strike. Accordingly, we find that the strike converted
to an unfair labor practice strike on October 25 when
the striking glaziers became aware of the Respondent's
unlawful implementation of its offer.
As their language reveals, both the ALJ and the Board
presumed that the Company's implementation of the wage package ________
that had triggered the strike aggravated and prolonged the work
stoppage. Neither cites to testimony from the striking employees
or any other evidence indicating that effectuation of the terms
the employees had rejected strengthened their resolve to remain
on strike or changed their attitude about the importance of a
work stoppage in settling their differences with the Company.
____________________
4 We reproduce the ALJ's full discussion of the issue:
Respondent's employees commenced an economic
strike on October 18. On that same date, Respondent
commenced upon a course of unilateral changes, changes
which I have found occurred before any impasse in
bargaining. Within two to three weeks, Respondent also
began to undermine the Union's status among its
employees, with threats, promises and unlawful support
and encouragement of a decertification petition. Such
conduct, I must find, prolonged the strike, which
continues to this date, and converted that strike to
one which must be deemed an unfair labor practice
strike.
-8-
Our own reading of the hearing transcript also reveals nothing of
that nature.
We recognize that there are cases holding that some types of
unfair labor practices inevitably impact the length of a strike.
In SKS Die Casting & Machining, Inc. v. NLRB, 941 F.2d 984, 991 __________________________________ ____
(9th Cir. 1991), the court adopted the Board's conclusion that a
refusal to reinstate strikers "by its nature" prolonged the
strike because it blocked the termination of the strike at a time
when the Union and striking employees had offered unconditionally
to end it. The panel observed that "[t]o find conversion on this
ground, it is not necessary to examine whether the Union was
protesting the unfair labor practice at issue," and noted that
the Board repeatedly had found that the refusal to reinstate
strikers converts an economic strike into an unfair labor
practices strike. Id. at 991-92. ___
The Eighth Circuit has made the same assumption of causation
with respect to a withdrawal of recognition. See Vulcan Hart ___ ____________
Corp. (St. Louis Div.) v. NLRB, 718 F.2d 269, 276 (8th Cir. 1983) ______________________ ____
("Whatever goals the strikers hoped to accomplish by striking, V-
H's withdrawal of recognition clearly prolonged the strike,
because it put an end to contract negotiations."). Accord C-Line ______ ______
Express, 292 N.L.R.B. 638 (1989). Indeed, as noted above, we, _______
too, have stated that the Board and reviewing court properly may
consider objective criteria and evaluate "the probable impact of
the type of unfair labor practice in question on reasonable
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strikers in the relevant context." Soule Glass, 652 F.2d at ____________
1080.
Always, however, the principal focus must remain on the
element of causation, and specific, subjective evidence of
changed motivation may be foregone only in those instances in
which the objective factors by themselves establish unequivocally
that a conversion occurred. We do not believe that this is such
a case.
The glaziers went on strike to protest the substantially
reduced wage offer made to them. The Company's decision to
implement that offer did not directly impact the strikers; they
already were out of work and therefore were not being paid.
Thus, although we think it possible that the glaziers took a
harder line once the Company gave force to its offer by adopting
it, and perhaps increased their resolve not to end the strike
until they received a satisfactory offer, such an effect of the
Company's action is not inevitable. It is just as likely that
the Company's continuing adherence to the unacceptable proposal -
- the economic issue that triggered the strike -- was what
continued to fuel their protest.
Indeed, this case poses a somewhat unusual conversion
question because the unfair labor practice is simply a
reinforcement of the very conduct that caused the strike in the
first place, rather than a collateral matter that may have added
to the employees' dissatisfaction. The Board's obligation is to
provide some basis for an inference that, in the aftermath of the
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implementation, the employees were separately motivated by that
act. Were we to accept as adequate the Board's assertion that
"[t]he probable impact" of learning that the proposal had been
implemented was "a reasonable tendency to prolong the strike," we
would seriously diminish the causation requirement.5
The cases noted above that have presumed causation are
easily distinguishable. See supra at 8-9. When a company ___ _____
refuses to reinstate employees who have offered to end a strike,
the cause and effect are obvious. Had the company not unlawfully
refused to take back those workers, the employees presumably
would have followed through on their intention to end the work
stoppage. Similarly, a withdrawal of recognition by definition
means the end of negotiations, which inevitably causes more than
just "a reasonable tendency to prolong the strike" but an actual
delay in its resolution. By contrast, when a company
unilaterally implements its final offer prematurely, we think it
less than apparent that the already ongoing strike has been
prolonged by the company's implementation of the offer rather ______________
____________________
5 The record here is notably different from that in NLRB v. ____
Powell Elec. Mfg. Co., 906 F.2d 1007, 1010 (5th Cir. 1990), which _____________________
also involved the unilateral implementation of a final offer.
There, the company began to implement its proposal after its
attorney declared at the end of a negotiating meeting that in his
opinion the parties had reached an impasse. The next day, union
members met with their attorney, who told them that he believed
impasse had not been reached and that the strike consequently had
been converted to an unfair labor practice strike. He then asked
the members if they wanted to continue the strike as an unfair
labor practice strike, and the members present voted unanimously
to do so. The strikers also modified their picket signs to
reflect that the strike was directed against company unfair
practices.
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than by its persistence in offering such poor terms.6 In short,
we are reluctant to extend the principle of conversion-by-
imputing-impact beyond those situations in which the link is
unmistakable.
It would not have been difficult for the General Counsel to
produce evidence, if it existed, that the employees were animated
at least in part by the Company's unfair labor practice. Two of
the striking glaziers testified at the hearing, as did the
Union's business manager and business representative. Although
counsel elicited testimony that the strikers were told of the
Company's action, no questions were asked concerning the impact
of that information on them. This gap is particularly
significant in the absence of any manifestation of a change in
outlook; the picket signs carried by the strikers, for example,
simply announced the strike and did not explain its basis. Cf. ___
SKS Die Casting, 941 F.2d at 992 (union changed picket signs to _______________
reflect reaction to unfair labor practices and distributed
handbills to that effect); NLRB v. Burkart Foam, Inc., 848 F.2d ____ __________________
825, 832 n.6 (7th Cir. 1988) (same). See also NLRB v. Champ ___ ____ ____ _____
Corp., 933 F.2d 688, 694-95 (9th Cir. 1990).7 _____
____________________
6 If the Board had made a finding of bad faith bargaining,
which it did not, this would be a different case. See C-Line ___ ______
Express, 292 N.L.R.B. 638 (1989). _______
7 In Champ, the unfair labor practice at issue was the _____
discharge of certain striking employees, which prompted a
unanimous vote of the union membership to remain on strike until
all strikers were reinstated. 933 F.2d at 688. In addition, the
union's negotiator informed the company's representative that the
union could not agree to deny reinstatement to any person. The
company's unlawful practice thus explicitly was identified as a
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Because the record lacks evidence of "any concrete acts or
affirmations" by the employees in response to the Company's
unfair labor practice, see Facet, 907 F.2d at 977, and because we ___ _____
see no basis for presuming that the unilateral implementation of
the terms that triggered the strike necessarily prolonged or
intensified the work stoppage, we must reject the Board's finding
of conversion.8
Accordingly, the Board's application for enforcement of its
order is granted in part and denied in part.
____________________
barrier to settlement of the strike.
8 The record is equally barren of evidence that other of the
Company's unfair labor practices impacted the strike.
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