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.,
___
Sher,
____

Attorney,
Associate

Frederick L. Feinstein, General

_______________________
General

Counsel, Linda
_____

Counsel, Aileen A. Armstrong, Deputy

_____________________

Associate General Counsel, for petitioner.

Robert Weihrauch for respondent.
________________
____________________

March 27, 1996

____________________

COFFIN, Senior Circuit Judge.

____________________

Board seeks enforcement

The National Labor Relations

of its order finding

that Harding Glass

Company

committed a series of unfair labor practices and that an

economic strike against

labor

practice

the Company was

strike

following

converted to an

Harding's

unfair

unilateral

implementation of its final offer.

We affirm most of the Board's

order but conclude that the record

lacks substantial evidence to

support

grant

its finding that the strike was converted.

in part,

and deny

in part,

the Board's

We therefore

application for

enforcement.1

I. Background
__________

Harding

Worcester,

("the

Company")

Massachusetts

replacement,

projects.

Glass

In

that

specializes

small construction and

mid-1993, when

is

small

in

business

auto

in

glass

other similar glass-related

the events relevant

to this

case

began, the Company employed

The glaziers

work.

The

were more

three glassworkers and two glaziers.

highly paid and

Company and

the Union

workers, Glaziers Local 1044

Painters

and

Allied

performed more

that represented

skilled

these five

of the International Brotherhood of

Trades,

AFL-CIO

("the

Union"),

had

____________________

The Company

findings
Relations

of

does not

violation

Act,

of

interfered in the Board's

(2) that

promised

them

it

and

of

the

of the

Board's

National

158(a)(1), including

that

Labor

(1) it

investigation of unfair labor practice

threatened employees

higher wages

supporting or remaining
encouraged

8(a)(1)

29 U.S.C.

charges;

challenge several

in

order to

members of

assisted

-2-

discourage

the Union; (3)

employees

decertification petition.

with discharge

in

the

and

them from

and that
filing

of

it

longstanding collective bargaining

arrangement through a

multi-

employer association, the GlassEmployers Group of Greater Boston.

The

Union had

most recent

agreement

an expiration date of

the Company's president, Mark

he

signed by

the Company

October 16, 1993.

and the

On June 30,

Goldstein, notified the Union that

wished to negotiate a separate agreement to replace the group

contract that was

company was not

expiring.

Goldstein was

concerned that

competitive in the Worcester area

his

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.

Company proposed a

one-year agreement that

The

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,

suggested techniques

significant

to do

of which involved

much of

glaziers to

for cutting

do.

the work

the Union's business

the Company's costs,

manager

the most

using the lower-paid glassworkers

that the

Company currently

Goldstein maintained that

was paying

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

next

day.

and establish a picket line,

The three

scheduled to discuss

agreed

glassworkers did

the Company's

which they did the

not attend

proposal to

not to cross the glaziers' picket line.

the meeting

them, but

they

The message sent

-3-

to

the Company

rejecting its

offer stated

"ready and willing to continue negotiations."

that the

Union was

On October 22, Goldstein met with the three glassworkers and

offered them the terms that had been contained in his proposal to

the

Union.

place.

The same

No

discussed

new proposals

the

glassworkers

hiring hall

day, the

Union's

for

were

made,

suggestion

most of

to provide

third negotiating

but

that

its business

glaziers when

and

session took

the parties

the

Company

rely on

necessary.

again

use

the Union

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

remained in effect

through December

indicates, the strike

Union filed

and,

has to this

unfair labor

following

the

held.

The picket line

and, so far

date not

as the

been settled.

practice charges against

two-day

National

hearing,

Labor

an

record

ALJ

the Company,

found

Act

multiple

violations

of

determined

that the strike was converted from an economic strike

-4-

Relations

The

and

also

to

an unfair

labor

practice strike.

The Board,

with

minor

modifications, affirmed.

On

appeal, Harding challenges only two

practice findings:

that

of the unfair labor

Goldstein threatened

employees with

shutdown of the business if they did not get rid of the Union and

that the Company

conditions in

unilaterally implemented changes

in employment

the absence of a valid impasse in bargaining.

Company also contends

that the record fails to

The

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

with

no basis

for disturbing the

Board's determination

respect to either of the unfair labor practice charges, and

believe

decision

that the ALJ's

and Order,

discussion, as

adequately

modified by

addresses these

the Board's

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
127,

such statements were

205, 220.

assertion
union

The

ALJ evidently

did not

See
___

Tr. at

credit Goldstein's

that he made only lawful complaints about how the high

wages

made

him

non-competitive.

determinations, of course, are

to

made to them.

make, and they stand

credibility

for the Board rather than

unless beyond the

NLRB v. Magnesium Casting Co., 668

____
______________________
(citation omitted).

"Such

for us

`bounds of reason.'"

F.2d 13, 21 (1st

Cir. 1981)

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

the employer

is found

unfair labor practice strike when

commits an intervening unfair

to make the strike last

longer than it otherwise would

have," Soule Glass and Glazing Co.

___________________________

(1st Cir. 1981).

only

Causation is

v. NLRB, 652 F.2d 1055,

____

crucial: "It

that the employer committed an

commencement of the strike, but that

was

`expanded

include

a protest

must be found

1079

not

unfair labor practice after

the

to

labor practice which

as a result the strike

over

[the]

unfair labor

practice[],'

and

delayed and the

that

settlement

strike prolonged."

of the

strike

was

Id.
___

at 1079-80

thereby

(citations

omitted).

and

The General

Counsel bears the burden

the Board's

finding

substantial evidence.

of

of proving causation,

conversion

Id. at
___

1080.

must be

Mere

supported

conjecture will

by

not

____________________

The nature

rights of striking

of

the strike

determines the

employees once

the work stoppage

employer may refuse to reinstate economic strikers

permanently replaced
strikers are entitled
contractual

or

during the

strike.
F.2d

strike.

to unconditional

statutory provision

entitled to back pay even

reinstatement

Unfair

ends.

who have been

labor practice

reinstatement, absent

to

the

An

contrary, and

are

if they have been replaced during

the

See General Indus. Employees Union Local 42 v. NLRB, 951

___ _______________________________________
____

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.

________________________

(10th Cir. 1990).

v. NLRB,
____

"[T]o sustain a finding of

must be

some evidence

reacted

to

in the

information

[the

unfair

which aggravated

963, 977

conversion, there

. .

labor

. employees

practice]

substantively

in a

strike."

It need not be shown, however, that the employer's

Id.
___

fashion

of

record that the

907 F.2d

or prolonged

the

unfair labor

practice was the sole or even the primary factor in

aggravating

factor,"

the strike,

but only

that

it was

"a contributing

NLRB v. Moore Business Forms, Inc., 574

____
___________________________

F.2d 835, 840

(5th Cir. 1978).

Both

objective

probative

and

of conversion.

subjective

factors

may

be

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

context.

Applying

strikers

in

the

relevant

subjective criteria, the Board

and

court may give substantial

weight to the strikers' own

characterization

motive

strike

after

continue to
focus

shift

of their

the unfair

labor

view the strike

to

protesting

for

continuing

practice.

as economic or
the

employer's

Did

to
they

did their
unlawful

conduct?

Soule Glass, 652 F.2d at 1080.

___________

Applying

these principles

to the

present case

renders us

unable

to

discussion

sustain

of

the

this issue

finding

comprised

within a

three-page

analysis of

decision

stated

conclusory

in

unilateral implementation

unlawful

petition,

threats, promises

"must" be

found

of

the

conversion.

single brief

language

that

support

to have

-7-

of

prolonged

the

ALJ's

paragraph

Company's conduct.

of its final offer,

and

The

The

Company's

together with its

decertification

the strike,

and

converted

it

"to

practice strike."

The Board

the

basis

one which

be

deemed

an unfair

labor

ALJ Op. at 9.4

affirmed the

for

must

that

finding of conversion,

determination to

the

but limited

Company's

unlawful

implementation of its last offer:

Because
contained

the

Respondent's initial

significant

reductions in

paid glaziers and caused them to

we

conclude that the

very changes
strike.

the compensation

strike on October 18,

unlawful implementation of these

had a reasonable tendency

to prolong the

Accordingly, we find that the strike converted

to an unfair
the

bargaining proposal

labor practice strike on

October 25 when

striking glaziers became aware of the Respondent's

unlawful implementation of its offer.

As

their

presumed that
________

language reveals,

the Company's

both

the

ALJ and

implementation of the

the

Board

wage package

that

had triggered the strike

stoppage.

Neither cites to testimony from the striking employees

or any other evidence

the employees

on strike or

work

aggravated and prolonged the work

indicating that effectuation of the

had rejected strengthened their

changed their

stoppage in

resolve to remain

attitude about the

settling their

terms

importance of

differences with

the Company.

____________________

4 We reproduce the ALJ's full discussion of the issue:

Respondent's
strike

employees

on October 18.

On that

commenced upon a course

which

have found

bargaining.
began

to

commenced

an

economic

same date, Respondent

of unilateral changes, changes

occurred

before

any impasse

the

employees, with threats,

Union's

status

among

of a decertification petition.

conduct,

find,

continues to

must

this date,

its

promises and unlawful support

and encouragement
I

in

Within two to three weeks, Respondent also

undermine

prolonged

the strike,

and converted that

Such
which

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.

ground,

The panel observed that "[t]o find conversion on this

it is

protesting the

the

not necessary

unfair labor practice

Board repeatedly

strikers

to examine

converts

practices strike.

an

had found

economic

whether the

at issue," and

that the

strike

refusal

into

an

Union was

noted that

to reinstate

unfair

labor

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

because it put an end to contract negotiations.").

Express,
_______

too,

292 N.L.R.B. 638 (1989).

strike,

Accord C-Line
______ ______

noted above, we,

have stated that the Board and reviewing court properly may

consider objective criteria and

the

Indeed, as

the

type

of unfair

labor

evaluate "the probable impact of

practice in

-9-

question

on reasonable

strikers

in the

relevant context."

Soule Glass, 652

____________

F.2d at

1080.

Always,

however, the

element

of

causation,

changed

motivation may be

principal

and

focus must

specific,

remain on

subjective

foregone only

in those

evidence

the

of

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

reduced

glaziers went

wage

offer made

on strike

to them.

to protest

the substantially

The Company's

decision to

implement that offer

already

Thus,

were

did not directly impact

out of

although we

work and

think it

therefore

possible that

harder line once the Company gave force to

it, and perhaps

increased their

until they received a

Company's action

the strikers; they

were not

being paid.

the glaziers

took a

its offer by adopting

resolve not to

end the

strike

satisfactory offer, such an effect

of the

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,

question

this

because

case

poses

the

unfair

reinforcement of the very

first

somewhat

labor

unusual

practice

is

conversion

simply

conduct that caused the strike

in the

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

act.

Were we

"[t]he probable

employees were separately motivated

to accept as adequate

impact" of learning

by that

the Board's assertion

that the proposal

that

had been

implemented was "a reasonable tendency to prolong the strike," we

would seriously diminish the causation requirement.5

The

easily

cases

noted above

distinguishable.

refuses

that

See
___

supra at
_____

refused

to take

8-9.

When

are

company

Had the company not unlawfully

those workers,

the employees

their intention to

Similarly, a withdrawal of

means the end

delay

back

have followed through on

stoppage.

just

presumed causation

to reinstate employees who have offered to end a strike,

the cause and effect are obvious.

would

have

presumably

end the work

recognition by definition

of negotiations, which inevitably causes more than

"a reasonable tendency to prolong the strike" but an actual

in

its

resolution.

By

unilaterally implements its final

less than

apparent

that the

contrast,

when

company

offer prematurely, we think it

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

There,

unilateral implementation

the company

began to

implement

of a

final offer.

its proposal

after its

attorney declared at the end of a negotiating meeting that in his

opinion the parties had reached an impasse.
members met with their

The

next day, union

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.
the members

if they wanted to

labor practice strike, and

to do
reflect

so.
that

The

continue the strike as

an unfair

the members present voted unanimously

strikers also

the strike

He then asked

was

modified their
directed

practices.

-11-

picket signs

against company

to

unfair

than by its persistence in offering such poor terms.6

we

are

reluctant

imputing-impact

to

extend the

beyond those

principle

situations

of

In

short,

conversion-by-

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.

the

striking

glaziers testified

Union's business

counsel

at

the

hearing,

as did

manager and business representative.

elicited testimony

that the strikers

Two of

were told

the

Although

of the

Company's action,

of

that

no questions were asked

information

significant

on

them.

in the absence of

SKS Die Casting,

_______________

reflect

reaction

832 n.6

is

to

and did not explain its

unfair

particularly

a change in

by the strikers, for

941 F.2d at 992 (union changed

handbills to that effect);

825,

gap

any manifestation of

outlook; the picket signs carried

simply announced the strike

This

concerning the impact

labor

practices

basis.

(same).

Cf.
___

picket signs to

and

distributed

NLRB v. Burkart Foam, Inc.,

____
__________________

(7th Cir. 1988)

example,

See also
___ ____

848 F.2d

NLRB v. Champ
____
_____

Corp., 933 F.2d 688, 694-95 (9th Cir. 1990).7

_____
____________________

6 If the
which it did

Board had made a finding of

not, this would

bad faith bargaining,

be a different

case.

See

C-Line

___

______

Express, 292 N.L.R.B. 638 (1989).

_______

In

Champ, the
_____
certain

unfair labor
striking

practice

which

was the

discharge

of

unanimous

vote of the union membership to remain on strike until

all strikers were reinstated.

employees,

at issue

933 F.2d at 688.

prompted

In addition, the

union's negotiator informed the company's representative that the

union could not agree
company's unlawful

to deny reinstatement to any

practice thus explicitly was

person.

The

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

the

for presuming that the unilateral implementation of

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-