
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.                                         -2-          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                                         -3-          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                                         -4-          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).                                         -5-          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).           ____                                         -6-          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                                         -7-          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                                         -9-          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                                         -10-          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.                                         -11-          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                                         -12-               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.                                         -13-
