NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,504, F.L. THORPE & CO.,INC. and UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

F.L. THORPE & CO.,INC. and UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC.

315 NLRB No. 22.Case No. 18-CA-11878-1. September 30, 1994 Burton Litvack, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

James L. Fox, for General Counsel. Kevin C. Berens and Jerylyn Bridgeford (Berens & Tate), Omaha, Nebraska, for Respondent. Delano Lords, Rapid City, South Dakota, for Charging Party.

Strikes and Strikers--Unfair Labor Practice--Unlawful Acts During Strike.--In view of the fact that an employer committed numerous unfair labor practices during a walkout that began as an economic strike, the strike was converted to an unfair labor practice strike. The employer’s unlawful acts objectively tended to cause consternation among the employees that prolonged the strike, and it was not reconverted to an economic strike after the employer made an improper effort to repudiate its prior unlawful acts. Section 13.

Back reference: ¶5215.082.

Reinstatement--Unfair Labor Practice Strikers--Replacements Hired.--By failing and refusing to reinstate unfair labor practice strikers who had not been permanently replaced and who made unconditional offers to return, an employer discriminated against them. The employer hired replacement workers after the employees offered to return and unlawfully conditioned any reinstatement upon the strikers’ resignation from the union. Section 8(a)(3).

Back reference: ¶4035.221.

Interference--Fact Finding--Strikebreaking.--On the facts, an employer interfered with its employees’ right to organize by informing its employees that they were fired, that they no longer had jobs and that they did not work at the employer’s plant any longer. Section 8(a)(1).

From Text of Board’s Decision

The primary question presented in this case is whether the Respondent’s unfair labor practices, committed during the course of a strike which all parties concede was an economic strike at its inception, converted that strike into an unfair labor practice strike. For the reasons which follow, we find, contrary to the judge, that the unfair labor practices did convert the strike.

Factual Background

The facts, as more fully set forth in the judge’s decision, are as follows. The Respondent manufactures and sells Black Hills gold jewelry. The Union was certified on July 17, 1990; the parties met 14 times over the ensuing 9 months in an unsuccessful effort to negotiate a first contract. On April 27, 1991, [1] after learning that a strike was possible, Respondent’s general manager, Terry Sanke, sent a letter to all unit employees advising them that they had the right to withhold their services in connection with a strike or to cross the picket line and that the Respondent would continue to operate and had the right to hire permanent replacements to do the employees’ jobs.

On April 28, Supervisor Lamphere called employee Cox to tell her that the Union had decided to call a strike, that “they” would be working and would give her a ride to work, but that she had to resign from the Union in order to go back to work during a strike. Cox told Lamphere that she had decided to join the strike, and repeated Lamphere’s remarks to at least six other employees.

On April 29, 67 of the 82 unit employees went on strike. That same day, Terry Sanke sent all employees a letter advising them that they had three options: to refuse to cross the picket line, in which case they could not be disciplined by the Respondent; to cross the picket line, in which case they could be fined by the Union; or to resign from the Union and return to work. The letter stated that employees who wanted to cross the picket line and avoid a union fine should resign from the Union first. Sanke included with the letter a sample resignation form with instructions for completing and returning it to the Union.

On May 11, striking employee Linda Smith called Supervisor Tribble because Smith wanted to return to work. [2] Tribble told Smith that in order to return to work she had to first sign a union resignation form and place it in the mail. Tribble also stated that Smith’s anniversary date would be pushed back for every week she was out on the picket line. As a result of having this condition placed on her return to work, Smith testified that in July she told a union official that the Respondent had refused to reinstate her unless she first resigned from the Union.

Shortly after the May 11 conversation with Tribble, Smith told fellow striking employee Kruse what Tribble had said. Kruse called Tribble herself, who stated that Kruse had to sign a union resignation form and mail it, after which she could return to work. Tribble subsequently told Kruse that her anniversary date would be set back a week for every week she stayed out on strike. Kruse decided not to return to work because she did not want to lose the privilege of union membership.

The striking employees picketed the Respondent’s plant on most if not all days of the strike, and there was much shouting back and forth between the picketers and Sandy Sanke in particular. In this regard, on several occasions in June, July, and August, Sanke shouted to employees such remarks as that they did not have jobs there anymore, that they were fired, that a particular worker was a “jobless wonder,” and that the strikers should go find a job and get a life.

These statements were widely discussed by the strikers, both on the picket line and at union meetings. Employee Theresa Otto testified that Sandy Sanke’s repeated statements that the strikers were fired and did not have jobs were discussed at every union meeting during the strike, with employees asking many questions about whether strikers could be fired or not and whether there was anything they could do about Sanke’s constantly telling them they had no jobs. Significantly, Otto also testified that, after being subjected to Sanke’s remarks, the employees were so angry that “if we don’t get a fair contract, it wouldn’t bother us if they went under.” Employees Smith, Kruse, and Roxanne Boyer also testified that Sanke’s statements were discussed at union meetings. Similarly, employee Katherine Bergstrom testified that the strikers’ concerns had changed since the beginning of the strike, in that they wanted to go back as a group, displacing the permanent replacements hired by the Respondent.

On August 8, the Respondent posted and sent to each striking employee a letter stating that Respondent’s management had not made or implied any statements that strikers no longer had jobs with the Respondent, explaining their rights as economic strikers, and telling them that any information they had to the contrary was inaccurate and should be disregarded. However, the judge found that Sandy Sanke continued, at least through the month of August, to tell strikers that they did not have jobs, to go home, that a striker was a jobless wonder, and that they were fired.

On October 4, after unfair labor practice charges had been filed concerning Tribble’s conditioning reinstatement on employees’ resigning from the Union, the Respondent again wrote to all employees advising them that no striking employees had been or would be discharged because they “choose to exercise their lawful right to strike.” The October 4 letter stated that any contrary statements should be disregarded, and that returning strikers would be accorded all rights provided by the National Labor Relations Act. The letter also advised the employees that resignation from the union “is not and never has been” a condition for returning to work, but did not mention the threats to set back strikers’ anniversary dates. [3]

A subsequent letter dated October 8 disavowed any threat to set back anniversary dates, as well as again disavowing any statements that strikers were fired or had to resign from the union in order to return to work. This letter further stated that “[i]f such actions and statements were made, they were unlawful,” and promised not to engage in like future conduct. Although not mentioned by the judge, the letter specifically assured employees that they had not and would not be discharged for striking, that they could return to work without resigning from the Union, and that their anniversary dates had not been altered because of the strike. On October 11, following the receipt of these letters, the Union unconditionally offered to return its members to work. As of October 14, the Respondent had 36 permanent replacements and 19 employees who either never joined the strike or had previously abandoned it; 21 former strikers received reinstatement letters and 11 accepted reinstatement. Thus, after the reinstatement offers had been accepted, the Respondent employed 36 permanent replacements, 19 cross-over employees, and 11 former strikers.

The Judge’s Decision

The judge found that Lamphere’s statement that strikers had to resign from the Union before they could return to work, Tribble’s statement that the strikers’ anniversary date would be set back for each week they were on strike, and Sandy Sanke’s statements that the strikers no longer had jobs, no longer worked at the plant, or were fired, all violated Section 8(a)(1). In addition, the judge found that the Respondent violated Section 8(a)(3) and (1) by refusing to reinstate employees Smith and Kruse unless they first resigned from the Union. There are no exceptions from these findings. [4]

However, the judge rejected the General Counsel’s contention that these unfair labor practices prolonged the strike and thus converted it into an unfair labor practice strike. The judge recognized that the Board has found that requiring strikers to resign from the Union as a condition of reinstatement is “an unfair labor practice that, by its nature, has a reasonable tendency to prolong the strike.” Gaywood Mfg. Co., [1989-90 CCH NLRB ¶16,212] 299 NLRB 697, 700 (1990). [5] Nevertheless, the judge found that all of the former strikers who testified stated that their discussions with other strikers concerning continuing the strike focused on economic concerns, and that the unfair labor practices were never cited in such discussions as a reason for continuing the strike. The judge also found that the unlawful conditions placed on reinstatement were not disseminated among unit employees sufficiently to support a finding of conversion. Thus, perceiving no evidence showing that the strikers’ subjective motivation was affected by the unfair labor practices the judge found that the unfair labor practices did not prolong the strike and thus that there was no conversion.

The Exceptions

The Union excepts to the judge’s finding that the strike was not converted to an unfair labor practice strike on May 12. Initially, the Union contends that the unfair labor practices present in this case should be deemed to have converted the strike “as a matter of law.” The Union notes that the Board has found that conditioning strikers’ reinstatement on resigning from the union is conduct which would “necessarily delay resolution of the strike, citing Gaywood Mfg. Co., above, and argues that, in Champ Corp., [1988-89 CCH NLRB ¶15,246] 291 NLRB 803 (1991), the Board also found that statements of the sort made by Sandy Sanke would reasonably lead employees to think that they had in fact been discharged.

The Union also excepts to the judge’s finding that there was no subjective evidence that the unfair labor practices motivated the strikers to prolong the work stoppage. In this regard, the Union argues that Kruse and Smith indisputably continued their participation in the strike because of Tribble’s unlawful condition on their reinstatement, and that the strike might have ended earlier if they had returned to work and other strikers had perceived the erosion of support for the strike at that time. The Union did not specifically except to the judge’s findings concerning dissemination, but rather asserts in its brief only that the evidence of Lamphere’s prestrike unlawful statement to Cox, and her testimony that she told six other employees what Lamphere had said, establishes “the potential” that these seven employees, in addition to Kruse and Smith, continued on strike in part because of the unfair labor practices. Finally, the Union contends that the judge erred in finding that Sandy Sanke’s unlawful statements did not prolong the strike.

The Respondent has excepted to the judge’s failure to find that, even if the strike was converted to an unfair labor practice strike, it was reconverted to an economic strike prior to the Union’s unconditional offer to return to work. In this regard, the Respondent contends that the August 8, October 4, and October 8 letters repudiated the unfair labor practices sufficiently to compel a finding that the strike was reconverted into an economic strike prior to October 11, the date the Union submitted an unconditional offer to return to work on behalf of the striking employees. [6]

Discussion

The standard applied by the Board to determine whether a strike has been converted to an unfair labor practice strike is well settled. Thus, the General Counsel may show that the unfair labor practices were a factor that caused a prolongation of the work stoppage by relying on both subjective and objective factors. Gaywood Mfg. Co., above at 700. Further, the General Counsel must prove only that “the unlawful conduct was a factor (not necessarily the sole or predominant one) that caused a prolongation of the work stoppage.” Id.

With regard to objective factors, the Board has recognized that “[c]ertain types of unfair labor practices by their nature will have a reasonable tendency to prolong the strike and therefore afford a sufficient and independent basis for finding a conversion.” C-Line Express, [1988-89 CCH NLRB ¶15,337] 292 NLRB 638 (1989) (emphasis added). In the instant case, we find, contrary to the judge, that the Respondent has committed unfair labor practices of this character. In this regard, we rely particularly on the unfair labor practices committed by the Respondent’s manager, Sandy Sanke. As set forth more fully above, Sanke repeatedly told picketing strikers that they were fired, that they should go home, and that they no longer had jobs because of their protected strike activity. As the judge noted, these statements were widely disseminated as well. Moreover, Sandy Sanke is one of the Respondent’s top management officials and the wife of its general manager. Particularly in light of Sanke’s high position in the Respondent’s managerial hierarchy, we find that there statements of termination reasonably tended to prolong the strike. See Gulf Envelope Co., [1980-81 CCH NLRB ¶18,183] 256 NLRB 320, 325-326 (1981). [7]

The judge found, and we agree, that the Respondent’s conditioning the strikers’ reinstatement on their first resigning from the Union also is conduct which reasonably tends to prolong a strike. As the Board observed in Gaywood at 700:

[T]he Respondent’s unlawful conditioning of reinstatement on resignation from the Union is comparable in effect to conduct such as an unlawful withdrawal of recognition during an economic strike--an unfair labor practice that, by its nature, has a reasonable tendency to prolong the strike....the Respondent’s unlawful statements concerning resignation would necessarily delay resolution of the strike by creating an issue to be resolved individually by striking employees who had made or were willing to make unconditional offers to return to work--i.e., whether the employee should resign from the Union in order to make an offer to return that would be acceptable to the Respondent.

See also Chicago Beef Co., [1989-90 CCH NLRB ¶16,142] 289 NLRB 1039 (1990), enfd. mem. 944 F.2d 905 (6th Cir. 1991). However, we disagree with the judge’s finding that these unfair labor practices were not sufficiently disseminated to have played a role in converting the strike. Thus, as noted above, the Respondent’s unlawful conditioning of reinstatement was disseminated to at least six other employees and to a union official. The Board has found that a similar degree of dissemination was sufficient to establish that unlawfully conditioning reinstatement on resigning from the union prolonged and thus converted a strike. See Gaywood Mfg. Co., above, 299 NLRB at 700 (employees who were unlawfully denied reinstatement discussed the matter with some of their fellow workers and with the union’s president).

Turning to subjective factors, we find that the record also contains ample evidence that the strikers’ subjective motivations for continuing the strike in fact did change as a result of the unfair labor practices. In this regard, the Board has recognized that `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'” C-Line Express, 292 NLRB 638 (1989) (quoting Soule Glass Co. v. NLRB, [91 LC ¶12,839] 652 F.2d 1055, 1080 (1st Cir. 1980)). Thus, and contrary to the judge, proof of strikers’ subjective motivations is not limited to evidence that the strikers specifically discussed the unfair labor practices as reasons for continuing the strike. [8]

The Board has recognized that self-serving, after-the fact characterizations of strikers’ motivations are to be accorded relatively less weight in determining whether a conversion has occurred. [9] On the other hand, the Board has never held that a conversion will be found only where employees as a group expressly vote or decide to continue on strike because of unfair labor practices. Rather, at least where, as here, the unfair labor practices are of a type which the Board has found objectively tend to prolong a strike, the Board has inferred a change in strikers’ subjective motivations where there is evidence that the unfair labor practices “caused consternation among the striking employees.” Chicago Beef, above, 298 NLRB at 1040. See also Gaywood Mfg. Co., above (same).

Applying this standard, we find ample evidence that the unfair labor practices committed by the Respondent caused consternation among the employees so as to prolong the strike. As noted above, the Respondent’s unlawfully conditioning three employees’ reinstatement on their first resigning from the Union was disseminated to at least six other striking employees and to a union official. Further, Sandy Sanke’s repeated statements that the strikers were fired and no longer had jobs also caused substantial consternation among the employees, inasmuch as they were discussed at all of the union meetings during the strike and angered the employees enough to make them wish, in the words of striking employee Otto, that the Respondent would “go under” unless they got a fair contract. [10] That the Respondent’s actions were cause for concern was further evidenced by the Respondent’s letters sent to employees in an effort to disavow its unlawful activities.

Thus, the subjective evidence of a shift in the motivation underlying the strike is not of the self-serving after-the-fact sort cautioned against in C-Line and Soule Glass. And, under strikingly similar circumstances, the Board has found that evidence of this type was sufficient to demonstrate conversion. See, e.g., Gaywood, above (conversion found, where two of four employees who were denied reinstatement discussed the matter with some of their fellow workers and with the union’s president, who raised the issue in discussions with the employer); Chicago Beef, above (employee testified that he did not want to sign resignation form and refused to cross picket line for that reason, another employee testified that everyone on the picket line was discussing the forms and they were a matter of great importance to the striking employees, and employer had posted and sent a notice in an unsuccessful effort to repudiate unfair labor practices); and La Famosa Foods, 282 NLRB 315 (1986) (employer’s threats and inducements were discussed among the employees and with a union delegate, and an employee testified that the strike was prolonged because the employees could not trust the Respondent under those circumstances). We see not basis for distinguishing these cases from the facts presented here. Accordingly, for the reasons set forth above, we find that the General Counsel has established that the strike in this case was converted to an unfair labor practice strike on or about May 12, 1991.

We also find that the strike was not reconverted to an economic strike by the Respondent’s efforts to repudiate its unfair labor practices. In order to reconvert an unfair labor practice strike, an employer must “unequivocally repudiate and rescind [its] unlawful actions.” Chicago Beef, above at 1040. In Chicago Beef, the Board found that the employer’s notice to employees, which stated that it did not require employees to resign from the union in order to work there, was ineffective to reconvert the strike because it did not mention the employer’s previously imposed condition on strikers of resigning their union membership to obtain reinstatement, and because the employer continued to violate the Act by refusing to reinstate the strikers even after the notice was posted. [11]

Applying this standard, it is clear that the Respondent’s August 8 and October 4 notice to employees did not reconvert the strike here. The August 8 letter stated that the Respondent had not made or implied any statements that strikers no longer had jobs with the Respondent, explained their rights as economic strikers, and stated that any information they had to the contrary was inaccurate and should be disregarded. This letter did not mention the Respondent’s prior refusal to reinstate strikers unless they first resigned from the Union, nor did it mention Tribble’s statement that anniversary dates would be set back. Moreover, as noted above, Sandy Sanke continued at least through the month of August to unlawfully tell strikers that they did not have jobs, to go home, and that they were fired. Under these circumstances, and in light of the letter’s failure to specifically mention any of the Respondent’s prior unlawfully actions, we find that the August 8 letter did not unequivocally repudiate and rescind the Respondent’s unfair labor practices or otherwise remove them as factors in prolonging the strike.

The October 4 letter, sent to strikers after unfair labor practices charges had been filed, is similarly defective. This letter again advised the employees that no striking employee had been or would be discharged because they “choose to exercise their lawful right to strike,” and wend on to state that any contrary statements should be disregarded and that returning strikers would be accorded all rights provided by the Act. Although the letter advised the employees that resignation from the Union “is not and never has been” a condition for returning to work,” it did not mention the threats to set back strikers’ anniversary dates. Based on the letter’s failure to specifically refer to the Respondent’s past actions, and the absence of any reference at all to the anniversary dates threats, we find that this letter also fails to satisfy the Board’s standards as set forth in Chicago Beef.

We find it unnecessary to pass on the sufficiency of the Respondent’s October 8 letter in this regard, inasmuch as the Union offered to return the strikers to work on October 11, after receiving that letter. [12] We assume arguendo that the October 8 letter reconverted the strike into an economic strike when it was received by the strikers and the Union, and we assume further that the Union offered to return after it received the letter. However, there is no evidence that permanent replacements were hired in the interim period between receipt of the letter and the offer to return. Thus, all replacements were hired at a time when the strike was an unfair labor practice strike. Under these circumstances, we find that the Respondent’s failure to reinstate the strikers violated Section 8(a)(3) and (1) of the Act. [13]