NLRB v. Harding Glass ( 1996 )


Menu:
  • 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-