                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-24-2001

Citizens Publishing v. NLRB
Precedential or Non-Precedential:

Docket 00-2825 & 00-3758




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Recommended Citation
"Citizens Publishing v. NLRB" (2001). 2001 Decisions. Paper 192.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/192


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Filed August 24, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2825/00-3758

CITIZENS PUBLISHING AND PRINTING COMPANY;
W. RYAN KEGEL; SCOTT KEGEL, Alter Egos,

       Petitioners/Cross-Respondents,

v.

NATIONAL LABOR RELATIONS BOARD,

       Respondent/Cross-Petitioner

ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD

(Cases 6-CA-27215, 6-CA-28147-1, 6-CA-28147-2,
6-CA-27832-2)

Argued: April 19, 2001

Before: SLOVITER, RENDELL, and FUENTES,
Circuit Judges

(Opinion Filed: August 24, 2001)
Robert E. Durrant (argued)
Campbell, Durrant & Beatty, P.C.
555 Grant Street, Suite 120
Pittsburgh, PA 15219-4408

Philip L. Clark, Jr.
Balph, Nicolls, Mitsos, Flannery &
 Clark
400 Sky Bank Building
14 North Mercer Street
New Castle, PA 16101

 ATTORNEYS FOR PETITIONERS/
CROSS-RESPONDENTS

Leonard R. Page
 Acting General Counsel
John H. Ferguson
 Associate General Counsel
Aileen A. Armstrong
 Deputy Associate General Counsel
Meredith Jason
 Supervisory Attorney
Charles P. Donnelly
 Attorney
Rachel Gartner Lennie
 Attorney
Fred B. Jacob (argued)
 Attorney
National Labor Relations Board
1099 14th Street, N.W.
Washington, DC 20570

 ATTORNEYS FOR RESPONDENT/
CROSS-PETITIONER

                        2
OPINION OF THE COURT

FUENTES, Circuit Judge:

Citizens Publishing and Printing Company and the two
brothers who operate it, W. Ryan Kegel ("RKegel") and Scott
R. Kegel ("SKegel"), filed a Petition for Review of a final
decision and order of the National Labor Relations Board
("Board"). The Board has filed a Cross-Application for
Enforcement. We have been asked to review (1) whether
Petitioners (collectively, "Citizens Publishing") committed an
unfair labor practice by unilaterally subcontracting night
and weekend photography work to independent
contractors, and (2) whether the labor strike was an"unfair
labor practice strike," rather than a mere economic strike.
We conclude that substantial evidence supports the Board's
affirmative findings as to both inquiries, as well as its
additional finding that Citizens Publishing falsely informed
the union that the striking employees had been
permanently replaced, thereby failing to reinstate the
strikers immediately upon their unconditional offer to
return to work. Therefore, we will deny the petition and
grant the cross-application. Further, because neither party
challenges the propriety or scope of the relief ordered by the
Board, we will enforce the Board's order in its entirety.

I.

A.

The facts germane to the issues on appeal are as follows.
Citizens Publishing and Printing Company is a family-
owned corporation, which publishes, circulates, and
distributes the Ellwood City Ledger, a daily newspaper, and
the Valley Tribune, a weekly newspaper. RKegel is the vice-
president and publisher with overall responsibility for the
company. SKegel is the general manager, who, together
with RKegel, is responsible for all day-to-day operations.
Each brother owns one-third of the company's stock.

                               3
Before 1993, Citizens Publishing had employed Bud
Dimeo as its sole full-time photographer for over 35 years.
Dimeo performed regular daytime photography work. To
cover the night/weekend work, Citizens Publishing had
used several stringers over the years, sometimes hiring
three to four at a time. Stringers are independent
contractors who contribute stories and/or who take
photographs for the newspaper on an ad hoc basis. They
are paid by-the-line for articles or a flat fee for each photo.

At some point in 1993, daytime photography work began
to decline for Dimeo such that sufficient work to sustain a
full-time photographer position no longer existed. As a
result, in August 1993, Citizens Publishing assigned
night/weekend work to Dimeo as part of his regular duties.
From August 1993 until his retirement in January 1995,
Dimeo was responsible for the majority of the newspaper's
night/weekend work. Because the night/weekend work was
part of his full-time duties, Dimeo did not receive any
additional compensation for these photographs. During this
same time, the full-time sports editor, Mark Crepp, also
expressed an interest in earning extra money. Citizens
Publishing thus assigned night/weekend work to him as
well, paying him a per picture rate. Additionally, Citizens
Publishing continued to hire stringers to perform
night/weekend work.

On December 28, 1993, Teamsters Local Union No. 261
("Union") was certified as the exclusive collective bargaining
representative for certain employees of the company. This
certified bargaining unit did not include stringers. In early
1994, the Union and Citizens Publishing began negotiating
for an initial collective-bargaining agreement. During the
negotiations, the parties discussed Citizens Publishing's
use of stringers but did not resolve the matter. On June 3,
1994, the parties agreed that, while the negotiations
progressed, Citizens Publishing would continue its past
practice. The next day, the Union requested that Citizens
Publishing hire a stringer to do night/weekend work in
order to enable Dimeo to spend more time with his ailing
wife. Citizens Publishing refused, insisting that it was not
going to give Dimeo full-time pay to work part-time.

                               4
When Dimeo retired in January 1995, Citizens Publishing
assigned Crepp to be the temporary full-time photographer.
In addition to his new photography duties, Crepp also
alternated as a weekend sports editor, writing sports stories
and assisting with the layout of the sports section. He also
worked on an annual business supplement published by
Citizens Publishing. In March 1995, Crepp informed
company management that he was having difficulty
completing the night/weekend work that Dimeo had
previously performed. In response, Citizens Publishing
hired several stringers to cover the night/weekend work.
Citizens Publishing informed Crepp that the stringers
would perform most of the photography work, but that
Crepp would continue to take sports photographs on nights
and weekends. Citizens Publishing neither notified the
Union of its decision to subcontract the night/weekend
photography work previously assigned to Dimeo nor gave
the Union the opportunity to bargain over this decision.

At the parties' next negotiating session, on April 11,
1995, the Union asserted that Citizens Publishing had
unilaterally removed photography work from the bargaining
unit by subcontracting the night/weekend work. The Union
asked Citizens Publishing to rescind its action, but the
company refused. On April 18, the Union filed an unfair
labor practice charge with the Board, alleging that Citizens
Publishing, in subcontracting night/weekend work, had
unilaterally changed the terms and conditions of
employment without bargaining, as required under federal
labor law.

On July 21, 1995, the Union learned that the Board
intended to issue a complaint based upon the Union's
unfair labor practice charge. Two days later, the Union met
with the employees and informed them of Citizens
Publishing's unilateral change and its refusal to rescind its
action, as well as the impending Board complaint. After
learning of Citizens Publishing's unfair labor practice,
numerous employees indicated their desire to go on strike,
and the membership held a strike vote. The membership
voted to strike and left work the next day, July 24.

After the bargaining unit employees went on strike,
Citizens Publishing continued to publish its newspapers,

                               5
relying on the assistance of family members, supervisory
employees, and a few non-striking bargaining unit
employees. Eventually, Citizens Publishing hired temporary
replacement workers. On January 5, 1996, the Union
contacted Citizens Publishing, seeking to resume
bargaining and requesting information concerning the
replacements. On February 22, the Union requested
additional information, advising Citizens Publishing that
the information was necessary "in the event that our
members make an unconditional offer to return to work."
By letter dated March 5, Citizens Publishing responded,
asserting that "[n]one of the temporary replacements are
considered to be permanent replacements."

The parties then scheduled a bargaining session for
March 14, 1996. Two days earlier, RKegel and SKegel had
met with Donald Smith, a management consultant
representing Citizens Publishing in its negotiations with the
Union. At that meeting, the Kegels had informed Smith that
they were happy with the replacement employees' job
performance and that, if he could not reach an agreement
with the Union soon, they would favor the permanent
replacement of the strikers. The next day, on March 13, the
Kegels and Smith drafted a letter from RKegel to Smith,
stating that Citizens Publishing believed the strike was an
economic strike, and that the company considered the
temporary replacements "to be regular permanent
replacement employees," namely, that the strikers were
being permanently replaced.

When the parties met on March 14, Smith began the
session by stating that he understood that the Union
planned to make an unconditional offer to return to work
that day. The Union representative responded affirmatively
but indicated that he also needed some additional
information. The parties discussed several issues, including
the wages that the strikers would receive upon their return.
When the Union sought a list identifying the replacement
workers and the jobs that they performed, Citizens
Publishing requested a caucus to consider the Union's
request.

During the caucus, Smith and SKegel met with RKegel at
a nearby restaurant. When Smith and SKegel reported that

                                6
the negotiations were not progressing, RKegel instructed
them to give the Union the March 13 letter indicating that
the replacements were considered permanent. When Smith
and SKegel returned to the bargaining session, they gave
the Union the March 13 letter. The bargaining session
ended shortly thereafter. At that time, Citizens Publishing
had not yet contacted the replacement employees regarding
any change in their employment status. Citizens Publishing
only advised its replacements on the next day, March 15,
that they were now viewed by company management as
permanent replacements.

Although the Union requested additional bargaining
dates, Citizens Publishing did not meet with the Union
again until May 13, 1996. That meeting resulted in a brief,
non-productive session. On May 15, the Union's president
sent Smith a letter, stating that he wished to "reconfirm"
that "each of the employees represented by Local 261 is
making an unconditional offer to return to work, at all
times since March 14, 1996." Citizens Publishing never
allowed the striking employees to return to their jobs, and
the parties did not reach a collective-bargaining agreement.

B.

Several labor cases arose from the foregoing factual
background. They were ultimately consolidated and tried in
October 1996 before an Administrative Law Judge ("ALJ"),
who issued his decision on June 30, 1997. The ALJ
concluded, among other things, that Citizens Publishing
had violated SS 8(a)(5), 8(a)(3), and 8(a)(1) of the National
Labor Relations Act ("Act") by: (1) unilaterally
subcontracting the night/weekend work of the full-time
photographers to stringers; (2) falsely informing the strikers
that they had been permanently replaced; and (3) failing to
reinstate the strikers immediately upon their unconditional
offer to return to work.

After Citizens Publishing filed exceptions to the ALJ's
decision, a three-member panel of the Board (with one
member dissenting) issued its decision and order on August
31, 2000, affirming the ALJ's rulings, findings, and
conclusions, as modified, and adopting a modified order.

                                7
The Board ordered Citizens Publishing to cease and desist
from: (1) unilaterally subcontracting night/weekend work
performed by the regular, full-time photographer; (2)
unlawfully discharging strikers and failing to reinstate
them; and (3) interfering with, restraining, or coercing
employees in the exercise of their statutory rights. The
Board also affirmatively ordered Citizens Publishing, among
other things, to: (1) restore the status quo with respect to
the night/weekend work performed by the regular, full-time
photographer before April 15, 1995; (2) offer full
reinstatement to the unfair labor practice strikers; (3) make
the unfair labor practice strikers whole for any loss of
earnings or other benefits suffered; and (4) post a remedial
notice.

Citizens Publishing thereafter filed a Petition for Review
in this Court on September 27, 2000, seeking to set aside
the Board's decision. The Board also filed a Cross-
Application for Enforcement on November 9, 2000. The
Clerk's Office assigned the cases separate docket numbers,
but, because they raised identical issues, we consolidated
them for appeal purposes.

II.

The Board exercised jurisdiction over this proceeding
under 29 U.S.C. SS 160(a), (b). The Board's decision and
order was a final order with respect to all the parties. See
id. S 160(c). As the alleged unfair labor practice occurred
within this Circuit, we may exercise jurisdiction over the
petition and the cross-application for enforcement under 29
U.S.C. SS 160(e) and (f). Both the petition and cross-
application were timely filed as the Act places no time limit
on such filings. See Schaefer v. NLRB, 697 F.2d 558, 560-
61 (3d Cir. 1983).

On review, we "accept the Board's factual determinations
and reasonable inferences derived from factual
determinations if they are supported by substantial
evidence." CPS Chem. Co. v. NLRB, 160 F.3d 150, 154 (3d
Cir. 1998) (internal quotations and citation omitted); accord
29 U.S.C. SS 160(e), (f); Universal Camera Corp. v. NLRB,
340 U.S. 474, 487-88 (1951). Substantial evidence is"more

                                8
than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Universal Camera, 340 U.S. at 477 (internal
quotations and citation omitted). Accordingly, to support
the Board's conclusion, the evidence "must do more than
create a suspicion of the existence of the fact to be
established. . . . [I]t must be enough to justify, if the trial
were to a jury, a refusal to direct a verdict when the
conclusion sought to be drawn from it is one of fact for the
jury." Id. (internal quotations and citation omitted).
However, we will not disturb the Board's factual inferences,
even if we would have made a contrary determination had
the matter been before us de novo. Id. at 488; Hedstrom Co.
v. NLRB, 629 F.2d 305, 313-14, 316 (3d Cir. 1980) (en
banc).

Further, our review is plenary over the Board's legal
analysis but, "[b]ecause of the Board's `special competence'
in the field of labor relations, its interpretation of the Act is
accorded substantial deference." Pattern Makers' League of
N. Am. v. NLRB, 473 U.S. 95, 100 (1985). That is, we will
uphold the Board's interpretations of the Act if they are
reasonable. Ford Motor Co. v. NLRB, 441 U.S. 488, 497
(1979); Resorts Int'l Hotel Casino v. NLRB, 996 F.2d 1553,
1556 (3d Cir. 1993).

A.

We first address whether Citizens Publishing committed
an unfair labor practice by unilaterally subcontracting
night/weekend work to stringers.

Under S 8(a)(5) of the Act, it is an unfair labor practice for
an employer "to refuse to bargain collectively with the
representatives of his employees." 29 U.S.C.S 158(a)(5).
Further, S 8(a)(5), as augmented by S 8(d), requires an
employer to bargain over "wages, hours, and other terms
and conditions of employment." Id. S 158(d). Accordingly, an
employer violates S 8(a)(5) "if, without bargaining to
impasse, it effects a unilateral change of an existing term or
condition of employment." Litton Fin. Printing Div. v. NLRB,
501 U.S. 190, 198 (1991); accord Hedstrom Co. v. NLRB,
629 F.2d 305, 317 (3d Cir. 1980) (en banc). By unilaterally

                               9
changing the employees' terms and conditions of
employment, an employer "minimizes the influence of
organized bargaining" and "emphasiz[es] to the employees
that there is no necessity for a collective bargaining agent."
May Dep't Stores Co. v. NLRB, 326 U.S. 376, 385 (1945). By
doing so, the employer also derivatively violatesS 8(a)(1) of
the Act, which makes it an unfair labor practice"to
interfere with, restrain, or coerce employees in the exercise
of " their statutory federal labor rights. 29 U.S.C.
S 158(a)(1).

When parties are engaged in negotiations for an initial
collective-bargaining agreement, the prohibition against
unilateral changes continues "unless and until an overall
impasse has been reached on bargaining for the agreement
as a whole." Master Window Cleaning, Inc., 302 N.L.R.B.
373, 374 (1991), enforced, 15 F.3d 1087 (9th Cir. 1994);
accord NLRB v. Katz, 369 U.S. 736, 742-48 (1962) (holding
that an employer violates the Act by undertaking unilateral
action while the parties are engaged in bargaining for an
initial collective-bargaining agreement). The allocation of
bargaining unit work is a term or condition of employment.
See Road Sprinkler Fitters Local Union No. 669 v. NLRB, 676
F.2d 826, 831 (D.C. Cir. 1982). Accordingly, an employer
violates SS 8(a)(5) and 8(a)(1) by unilaterally diverting or
subcontracting work allocated to the bargaining unit at the
time of the union's certification. See, e.g., Acme Die Casting,
315 N.L.R.B. 202, 202 n.1 (1994) (holding that the
employer violated the Act by subcontracting unit work
while the parties were negotiating for an initial collective-
bargaining agreement); cf. Adair Standish Corp. v. NLRB,
912 F.2d 854, 863-64 (6th Cir.) (holding that the employer
violated the Act by instituting changes in the employees'
schedules following the union's certification), enforced, 914
F.2d 255 (6th Cir. 1990). By contrast, where an employer's
action does not involve a unilateral change in the status
quo, but rather, a continuation of an uninterrupted,
established past practice, its action does not violate the Act.
See, e.g., Bryant & Stratton Bus. Inst. v. NLRB, 140 F.3d
169, 175-76 (2d Cir. 1998) (holding that the employer did
not violate the Act where its required use of a sign-in board
was a "reaffirmation of its previous policy and not a change

                               10
in the employee's terms and conditions of employment of
unit employees").

Here, substantial evidence supports the Board's finding
that, as of August 1993, Citizens Publishing's
night/weekend work became "an integral part of the regular
full-time photographer's work," and thus, became
bargaining unit work. The record plainly reveals that, by
1993, the workload of the full-time photographer had
declined to the point that there was not enough work to
sustain the full-time position. Thus, in August 1993, when
Citizens Publishing assigned the night/weekend work to
Dimeo, that work became a necessary and integral part of
the full-time photographer's position. Indeed, Citizens
Publishing's refusal to have night/weekend work removed
from Dimeo's duties, and its concomitant insistence to the
Union that it would not give Dimeo full-time pay for part-
time work, exemplify this change. Additionally, Dimeo did
not receive any additional remuneration for his
night/weekend work. These facts support the Board's
finding that Citizens Publishing "made [night/weekend]
work part of the regular duties of the full-time
photographer." Thus, at the time of the Union's certification
in December 1993, the status quo included a full-time
photographer's position with night/weekend work.
Accordingly, substantial evidence supports the
determination that Citizens Publishing violated the Act
when it unilaterally subcontracted the bargaining unit work
during the negotiations over the initial collective-bargaining
agreement.

Citizens Publishing contends that substantial evidence
does not support the Board's decision that it had
committed an unfair labor practice because it was merely
adhering to a well established past practice when it utilized
stringers after August 1993. This contention, however, fails
to recognize that status quo is determined as of the time of
a union's certification. See, e.g., NLRB v. Talsol Corp., 155
F.3d 785, 794 (6th Cir. 1998); Anchortank, Inc. v. NLRB,
618 F.2d 1153, 1156-57 (5th Cir. 1980). Thus, although
Citizens Publishing had used stringers to perform a small
part of the night/weekend work, that work had become an
integral part of the full-time photographer's job at the time

                               11
of the Union's certification in December 1993. In other
words, it had become bargaining unit work. For this
reason, the Board reasonably focused on the duties of the
full-time photographer, rather than the stringers, thereby
finding that, by removing work from that bargaining unit
position, Citizens Publishing had unilaterally changed the
terms and conditions of the full-time photographer's
employment. Accordingly, contrary to its contention,
Citizens Publishing's action was inconsistent with a past
practice and violated SS 8(a)(5) and 8(a)(1) of the Act.

Therefore, substantial evidence supports the Board's
decision that Citizens Publishing committed an unfair labor
practice when it unilaterally subcontracted night/weekend
work to stringers.

B.

We next address whether the strike was an "unfair labor
practice strike," as opposed to a mere economic strike.

The right of employees to engage in a lawful strike is a
fundamental provision of the Act. See NLRB v. Erie Resistor
Corp., 373 U.S. 221, 233-35 (1963); NLRB v. Int'l Rice
Milling Co., 341 U.S. 665, 672-72 & nn. 6-8 (1951); see also
29 U.S.C. S 163 ("Nothing in [the Act], except as specifically
provided for herein, shall be construed so as either to
interfere with or impede or diminish in any way the right to
strike, or to affect the limitations or qualifications on that
right."). All striking workers retain their status as
"employees" under the Act. See 29 U.S.C. S 152(3). Striking
workers fall within two categories: (1) unfair labor practice
strikers, who are motivated, at least in part, by their
employer's commission of an unfair labor practice; and (2)
economic strikers, who are striking over recognition or
bargaining demands. General Indus. Employees Union,
Local 42 v. NLRB, 951 F.2d 1308, 1311-12 (D.C. Cir. 1991).

One difference between these two categories is that the
former enjoys greater reinstatement rights. Specifically,
unfair labor practice strikers are entitled to immediate
reinstatement upon their unconditional offers to return to
work; any replacements hired during the strike must be
dismissed, if necessary, to effect reinstatement of the

                                12
strikers. Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278
(1956); Hajoca Corp. v. NLRB, 872 F.2d 1169, 1177 (3d Cir.
1989). By contrast, economic strikers are entitled, upon
their unconditional offers to return to work, to
reinstatement to their former or substantially equivalent
positions, if no permanent replacements have been hired to
replace them and the positions remain open. NLRB v.
Fleetwood Trailer Co., 389 U.S. 375, 378-79 (1967).

An unfair labor practice strike is any strike that is
caused "at least in part" by an employer's unfair labor
practice. Struthers Wells Corp. v. NLRB, 721 F.2d 465, 471
(3d Cir. 1983). It is immaterial whether other reasons for a
strike exist because, "if an unfair labor practice had
anything to do with causing the strike," that strike is an
unfair labor practice strike. NLRB v. Cast Optics Corp., 458
F.2d 398, 407 (3d Cir. 1972) (internal quotations and
citation omitted). Further, a strike that begins as an
economic dispute can be converted into an unfair labor
practice strike if an employer's subsequent unfair labor
practice aggravates or prolongs the strike. NLRB v. Frick
Co., 397 F.2d 956, 964 (3d Cir. 1968). A failure to reinstate
unfair labor practice strikers constitutes prohibited
discrimination under SS 8(a)(3) and 8(a)(1) of the Act
because it has the effect of discouraging employees from
exercising their rights to organize and to strike under the
Act. Mastro, 350 U.S. at 278; Struthers , 721 F.2d at 471.
Whether a strike is an unfair labor practice strike is a
factual issue upon which the Board's findings are
conclusive if supported by substantial evidence on the
record as a whole. Columbia Portland Cement Co. v. NLRB,
915 F.2d 253, 259 (6th Cir. 1990).

Here, substantial evidence supports the Board's finding
that the strike was an unfair labor practice strike. The
Union convened a meeting of bargaining unit members on
the day before the strike began. At that meeting, the Union
discussed Citizens Publishing's allegedly unlawful removal
of night/weekend work from the full-time photographer's
duties and notified the employees that the Board's regional
office would be issuing a complaint against Citizens
Publishing based upon that unfair labor practice. After
learning of Citizens Publishing's action, numerous

                                13
employees indicated their desire to go on strike, and the
membership held a strike vote. These facts support the
Board's finding that its decision to issue a complaint
"galvanized the bargaining unit members' belief that an
unfair labor practice had been committed and served as the
flashpoint for discussion about calling a strike."

Moreover, even if Citizens Publishing's subcontracting of
night/weekend work did not constitute an unfair labor
practice, its discharge of the striking employees on March
14, 1996 converted the strike into an unfair labor practice
strike because it prolonged the strike. As the Board found,
and as we explain below, Citizens Publishing's false
declaration that it had permanently replaced the strikers
prolonged the strike by thwarting the Union's attempt to
make an unconditional offer to return to work that day.
Indeed, the Union informed Citizens Publishing at the
March 14 bargaining session of its intent to make an
unconditional offer to return to work. Before the Union
could make its offer, however, Citizens Publishing pre-
emptively notified the Union that it had permanently
replaced the strikers, thereby effectively informing the
Union that any unconditional offer to return to work would
be futile. Accordingly, the Board reasonably found that,
even if the strike had begun as an economic strike, Citizens
Publishing's false declaration had prolonged the strike and
converted it into an unfair labor practice strike. Cf. NLRB v.
Champ Corp., 933 F.2d 688, 694-95 (9th Cir. 1990)
(holding that the employer's conduct effectively derailed
contract negotiations, thereby prolonging the economic
strike and converting it into an unfair labor practice strike).

To support its argument that the strike was a mere
economic strike, Citizens Publishing contends that its
unlawful subcontracting could not have had a causal
connection to the decision to strike because the strike vote
in July 1995 took place four months after its own action in
March 1995. Citizens Publishing's argument, however,
sidesteps the fact that a lapse in time between an unfair
labor practice and a strike is "not conclusive in establishing
the basis for a strike." Burns Motor Freight, Inc., 250
N.L.R.B. 276, 277-78 (1980). Further, it overlooks the fact
that the Union did not convene its membership until the

                                14
Board's regional office had determined that Citizens
Publishing's unlawful subcontracting was, in actuality, an
unfair labor practice.

Citizens Publishing also maintains that the Union
provided bargaining committee members with inaccurate
and misleading information to foment the strike (namely,
that Crepp would no longer be a photographer and that the
company had subcontracted out all of the photography
work), and thus, the strike was an economic strike, rather
than an unfair labor strike. This misrepresentation,
however, was insignificant because the Union only made it
to the five employee members of the bargaining committee,
not to the bargaining unit members as whole, and thus, its
effect on the Union's membership was minimal. In any
case, the record as a whole contains substantial evidence to
support the Board's contrary finding that, in deciding to
strike, the employees were motivated by Citizens
Publishing's unfair labor practice, not by the Union's
misrepresentation.

Similarly, Citizens Publishing argues that only the
Union's motivation, and not the striking employees'
motivation, is relevant to the Board's determination of
causation. We do not agree. The Board has repeatedly
relied upon evidence of the strikers' motivation to show that
the strike is based, at least in part, upon the employer's
unfair labor practice. Citizens Publishing has cited no
authority in which the Board or courts have applied a
different rule. See, e.g., Alwin Mfg. Co. v. NLRB, 192 F.3d
133, 141-42 (D.C. Cir. 1999) (holding that the striking
employees' motivation for striking is central to a finding of
an unfair labor practice strike); Calex Corp. v. NLRB, 144
F.3d 904, 911 (6th Cir. 1998) (holding that the employees'
discussion at pre-strike meeting are significant in finding
an unfair labor practice strike).

Therefore, substantial evidence supports the Board's
decision that the ensuing labor strike was an "unfair labor
practice strike" rather than an economic strike.

C.

Although we have determined that the striking employees
had participated in an unfair labor practice strike, rather

                                15
than an economic strike, we also find substantial evidence
in the record to uphold the Board's decision to reinstate the
striking employees based upon an alternative ground. Even
assuming that the strike was an economic strike, we would
uphold the Board's decision because of Citizens
Publishing's false representation to the Union that the
strikers had been permanently replaced and its subsequent
failure to reinstate them immediately upon their
unconditional offer to return to work.

Under S 8(a)(3) of the Act, it is an unfair labor practice for
an employer "by discrimination in regard to hire or tenure
of employment or any term or condition of employment to
encourage or discourage" union membership. 29 U.S.C.
S 158(a)(3). Thus, an employer violates S 8(a)(3) (and,
derivatively, S 8(a)(1)) by discharging employees because of
their union activity. NLRB v. Transp. Mgmt. Corp., 462 U.S.
393, 397-98, 401 (1983), overruled on other grounds,
Director, OWCP v. Greenwich Collieries, 512 U.S. 267
(1994). One example of a protected union activity is
"participation in concerted activities, such as a legitimate
strike." NLRB v. Erie Resistor Corp., 373 U.S. 221, 233
(1963) (citation omitted); see also Div. 1287 of the
Amalgamated Ass'n of Street, Elec. Ry and Motor Coach
Employees of Am. v. Missouri, 374 U.S. 74, 82 (1963)
("Collective bargaining, with the right to strike at its core, is
the essence of the federal scheme."); 29 U.S.C.SS 157, 163.

As we explained above, the right to strike does not
prevent an employer from hiring permanent replacements
during a strike. However, "[t]he discharge of. . . strikers
prior . . . to the time their places are filled" violates
SS 8(a)(3) and 8(a)(1). NLRB v. Int'l Van Lines, 409 U.S. 48,
52 (1972) (internal quotations and citations omitted). In
order for replacement workers to be considered permanent,
the employer and the replacements must have a "mutual
understanding" regarding their permanent status. See, e.g.,
NLRB v. Augusta Bakery Corp., 957 F.2d 1467, 1473 (7th
Cir. 1992). Accordingly, an employer's false declaration that
strikers have been permanently replaced effectively
discharges the employees because the effect of that action
is to withhold from strikers "the right to return to their
unoccupied jobs simply because they have gone out on

                               16
strike." Am. Linen Supply Co., 297 N.L.R.B. 137, 137
(1989), enforced, 945 F.2d 1428 (8th Cir. 1991); see, e.g.,
Int'l Van, 409 U.S. at 50, 53 (holding that a statement that
striking employees "are being permanently replaced"
constituted an unlawful discharge when permanent
replacements had not been hired); W.C. McQuaide, Inc., 237
N.L.R.B. 177, 178-79 (1978) (holding that falsely informing
strikers that they had been permanently replaced
constituted an unlawful discharge), enforced, 617 F.2d 349
(3d Cir. 1980). Although the case law supporting the
foregoing proposition involves false declarations made to
economic strikers, the underlying principle is equally
applicable to unfair labor practice strikers who have more,
not fewer, rights and protections under the Act. See Pirelli
Cable Corp. v. NLRB, 141 F.3d 503, 519 (4th Cir. 1998)
(stating that "[u]nfair labor practice strikers have more
rights and protections" than economic strikers); George
Banta Co. v. NLRB, 686 F.2d 10, 20 (D.C. Cir. 1982) (noting
that statutory reinstatement rights of economic and unfair
labor practice strikers are "identical" except that the
employer may not hire permanent replacements during an
unfair labor practice strike).

Here, substantial evidence supports the Board's finding
that, by falsely informing the striking employees that they
had been permanently replaced, Citizens Publishing
violated SS 8(a)(3) and 8(a)(1) of the Act. Citizens Publishing
concedes in its brief that, on March 14, 1996, it gave the
Union a letter indicating that, on March 13, it considered
the replacement workers to be permanent hires. Citizens
Publishing further concedes in its brief that it did not
advise the replacements that they had become permanent
employees until one day after giving the March 13 letter to
the Union. Thus, Citizens Publishing and the replacement
workers plainly lacked a mutual understanding regarding
the replacement workers' status at the time Citizens
Publishing presented the letter to the Union. These facts
support the Board's finding that Citizens Publishing falsely
advised the Union that it had permanently replaced the
strikers. Accordingly, substantial evidence supports the
determination that Citizens Publishing violated the Act by
effectively discharging the striking employees through a

                               17
false declaration and withholding from them the right to
return to their unoccupied jobs.

Moreover, by informing the Union in the March 13 letter
that it considered the strikers to be economic strikers who
were being permanently replaced, Citizens Publishing pre-
empted the strikers' ability to make an unconditional offer
to return to work. Thus, even if the strike was an economic
strike, substantial evidence supports the determination
that Citizens Publishing's representation violated the Act by
enabling it to pre-empt the Union's unconditional offer to
return to work, thereby affording Citizens Publishing the
opportunity to hire actual permanent replacements.

Consequently, Citizens Publishing's reliance in its brief
on the seemingly small amount of time (one day) it took to
notify the replacements of their status after notifying the
strikers is misplaced because the key fact under federal
labor law is the effect of the misrepresentation. In addition,
Citizens Publishing's contention that the misrepresentation
did not violate the Act because it was made to the
employees' union representatives, rather than directly to
the strikers, is factually inaccurate because, as Citizens
Publishing concedes in its brief, it delivered the message
directly to two striking employees who were part of the
Union's bargaining team.

Finally, Citizens Publishing contends that substantial
evidence does not support the Board's decision here
because it truthfully and accurately reflected its view of the
replacement workers' status in the March 13 letter.
However, this assertion ignores the fact that the letter
stated that the changed status occurred "[e]ffective today,"
or March 13, even though the replacements were not
actually informed until March 15. As a result, the Board
reasonably interpreted the letter as falsely informing the
Union that the strikers were permanently replaced as of
March 13. But cf. Noel Foods, a Div. of Noel Corp. v. NLRB,
82 F.3d 1113, 1119-20 (D.C. Cir. 1996) (concluding that
the employer's statement to the striking employees that it
had hired permanent replacements was truthful when
made). Further, the Board reasonably inferred that Citizens
Publishing's intent in writing and delivering the letter on
March 14 was reflected in the letter's message, namely,

                               18
that, because the strikers were being permanently replaced,
it would be futile for the Union to make an unconditional
offer to return to work.

Therefore, substantial evidence supports the Board's
decision that Citizens Publishing falsely advised the Union
that the strikers had been permanently replaced and failed
to reinstate the strikers immediately upon their
unconditional offer to return to work.

III.

For the foregoing reasons, we will deny the petition and
grant the cross-application. Accordingly, because neither
party challenges the propriety or scope of the relief ordered
by the Board, we will enforce the Board's order in its
entirety.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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