F.L. Thorpe & Co. v. National Labor Relations Board , 71 F.3d 282 ( 1995 )

___________
No. 94-3610
___________
F. L. Thorpe & Co., Inc., *
*
Petitioner, *
*
v. *
*
National Labor Relations Board, *
*
Respondent, *
*
United Steelworkers of America, *
AFL-CIO/CLC, *
*
Intervenors. *
___________ On Petition For Review and
Cross-Application for
No. 94-3911 Enforcement of an Order of the
___________ National Labor Relations Board.
F. L. Thorpe & Co., Inc., *
*
Respondent, *
*
v. *
*
National Labor Relations Board, *
*
Petitioner, *
*
United Steelworkers of America, *
AFL-CIO/CLC, *
*
Intervenor. *
__________
Submitted: April 10, 1995
Filed: December 1, 1995
__________
Before MAGILL and HANSEN, Circuit Judges, and GOLDBERG,* Judge.
___________
GOLDBERG, Judge.
F.L. Thorpe & Co., Inc. ("Thorpe" or "the Company") petitions for
review of an order of the National Labor Relations Board ("NLRB") which
concluded that unfair labor practices committed by Company agents converted
an economic strike by the United Steelworkers of America ("the Union") into
an unfair labor practice strike. Thorpe also seeks review of the NLRB's
conclusion that once converted into an unfair labor practice strike,
actions taken by the Company failed to reconvert the strike back into an
economic strike. The NLRB has filed a cross-application for enforcement
of its order. The Union has intervened in support of the NLRB's cross-
application. The court exercises jurisdiction pursuant to 29 U.S.C. §
160(e), (f). Because we find that the NLRB erred as a matter of law in
concluding that the unfair labor practices committed by Company agents
converted the Union's economic strike into an unfair labor practice strike,
we reverse.
I. BACKGROUND
Following a hearing of this matter, the Administrative Law Judge1
("ALJ") made the following findings of fact which the NLRB panel
subsequently adopted. F.L. Thorpe & Co., 315 NLRB No. 22, at 1-2 (Sept.
30, 1994). The Company manufactures and sells Black Hills gold jewelry.
On July 27, 1990, the Union was certified as the exclusive representative
of the Company's production and maintenance employees for purposes of
collective bargaining. The
* The HONORABLE RICHARD W. GOLDBERG, Judge, United
States Court of International Trade, sitting by
designation.
1
The Honorable Burton Litvack, Administrative Law Judge.
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parties met 14 times over the ensuing nine months in an unsuccessful effort
to negotiate a first contract.
On April 27, 1991, after learning that a strike was possible, the
Company's general manager, Terry Sanke, drafted a letter to all unit
employees advising them that they had a right to withhold their services
in connection with a strike, or to cross the picket line. The letter also
stated that the Company would continue to operate and that it had the right
to hire permanent replacements to perform the employees' jobs.
On April 28, 1991, Company Supervisor Judy Lamphere called employee
Susan Cox to tell her that the Union had decided to call a strike.
Lamphere also told Cox that "they" would be working and would give Cox a
ride to work, but that she had to resign from the Union in order to return
to work during a strike. Cox informed Lamphere that she had decided to
join the strike, and repeated Lamphere's remarks to at least six other
employees. There is no record evidence as to whether said conversations
were prior to or subsequent to the start of the strike.
On April 29, 1991, sixty-seven of the eighty-two unit employees
commenced a work stoppage against the Company. That same day, Terry Sanke
drafted another letter to the bargaining unit employees, advising them that
they had three options during a strike: (1) to refuse to cross the picket
line; (2) to cross the picket line; or (3) to resign from the Union and
return to work. The letter stated that employees who wanted to cross the
picket line and avoid being fined by the Union should resign from the Union
first. Sanke included with the letter a sample resignation form with
instructions for completing and returning it to the Union.
On May 11, 1991, striking employee Linda Smith called Supervisor
Carol Tribble and expressed an interest in returning to
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work. Tribble told Smith that in order to return to work she first had to
sign a Union resignation form and place it in the mail. In addition,
Tribble stated that Smith's anniversary date would be pushed back for every
week she was out on the picket line.
Smith subsequently related her discussion with Tribble to fellow
striking employee Cindy Kruse. Kruse called Tribble, who stated that in
order to return to work Kruse first had to sign a Union resignation form
and place it in the mail. Tribble later told Kruse that her anniversary
date would be set back a week for every week she stayed out on strike.
Kruse decided not to return to work at that time.
The striking employees picketed the Company's plant on most if not
all days during the strike. Picket signs went up shortly after the
strike's inception. Notably, at no time during the duration of the strike
did the picket signs change in response to actions taken by Company agents;
rather, at all times the picket signs alluded solely to economic reasons
for the strike. The picket signs never indicated that the strike was
intended to be an unfair labor practice strike.
During June, July, and August of 1991, there was much shouting of
invectives and insults between the strikers, the replacement employees, and
the Company's supervisors. In particular, on several occasions the
Company's credit manager, Sandy Sanke, shouted: that the strikers did not
have jobs there anymore; that they were fired; that the strikers should go
find a job and get a life; and that a particular employee was a "jobless
wonder."
On or about August 2, 1991, Company officials learned that the Union
was alleging that Company representatives had made unlawful threats and
other comments as early as the day before the strike began. Terry Sanke
investigated the matter by speaking with the Company representatives named
by the Union. The Company
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representatives all denied making illegal comments. In a letter sent to
each of the striking employees dated August 8, 1991, Terry Sanke stated
that the Company's management had not made or implied any statements that
strikers no longer had jobs with the Company, and that any information they
had to the contrary was inaccurate and should be disregarded. Sanke
further explained their rights as economic strikers. However, the ALJ
found that Sandy Sanke continued, at least throughout the month of August,
to tell strikers: that they did not have jobs; to go home; that they were
fired; and that a particular striker was a jobless wonder.
On August 27, 1991, the Union filed an unfair labor practice ("ULP")
charge with the NLRB, repeating its earlier allegations. On October 8,
1991 and January 9, 1992, respectively, the Union filed a first and second
amended ULP charge with the NLRB. Following an investigation, the Regional
Director of Region 18 of the NLRB issued an amended complaint on January
21, 1992. The amended complaint alleged that the Company violated section
8(a)(1) of the National Labor Relations Act ("the Act") by informing an
employee that she was required to resign her union membership before
returning to work if she engaged in a strike; by warning employees that
their anniversary dates would be set back one week for every week they
remained on a picket line; and by telling employees that, because they
engaged in a strike, they were no longer employed by the Company. The
amended complaint further alleged that the Company violated sections
8(a)(1) and (3) of the Act by refusing to reinstate employees, following
unconditional requests to return to work, unless they resigned their union
memberships; and, as the employees' economic strike was allegedly converted
to a ULP strike by the aforementioned conduct, by refusing to reinstate
striking employees to their former positions following unconditional offers
to return to work.
The employees' strike continued through September 1991, by the end
of which month the Company had hired and employed approximately
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28 permanent replacement employees and 20 bargaining unit employees who had
either not joined the strike at its inception or who had since abandoned
the strike. On September 30, 1991, the Company sent Smith and Kruse a
letter offering them immediate and unconditional reinstatement. The letter
expressly stated that they did not have to resign their union memberships
before returning to work. The Company sent Smith and Kruse another letter
on October 7, 1991, clarifying that in addition to being reinstated, they
would be paid all back pay to which they were entitled under the Act.
On October 4, 1991, the Company mailed to every striking employee and
posted on its plant bulletin boards a letter, signed by Terry Sanke,
advising employees that resignation of union membership had never been a
condition for returning to work for the Company and that no striking
employee had been, or ever would be, discharged because they chose to
participate in the strike. The Company sent another letter to all
employees dated October 8, 1991, in which it disavowed any threat to set
back anniversary dates as well as any statements that strikers were fired
or had to resign from the Union in order to return to work; the Company
also acknowledged that if such statements were made, they were unlawful.
On October 11, 1991, the Union unconditionally offered to return its
members to work. Twenty-one former strikers whose names appeared on a
seniority list received reinstatement letters; eleven of these striking
employees subsequently accepted reinstatement.
A trial was held before the ALJ on February 25 and 26, 1992. The ALJ
found that the Company had indeed violated section 8(a)(1) and sections
8(a)(3) and (1), as alleged in the amended complaint. In particular, the
ALJ found that: (1) Tribble's statement that the strikers' anniversary date
would be pushed back and Sandy Sanke's remarks to strikers throughout the
strike violated Section 8(a)(1) of the Act; and (2) the Company's refusal
to reinstate Smith and Kruse unless they first resigned from the Union
violated Sections
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8(a)(3) and (1) of the Act. However, the ALJ rejected the contention that
these ULP's prolonged the strike and thus converted it into an unfair labor
practice strike.
Upon review before a three-member panel of the NLRB ("the Board"),
the Union took exception to the ALJ's finding that the strike was not
converted into an unfair labor practice strike on May 12, 1991. The Union
further took exception to the ALJ's finding that there was no subjective
evidence that the ULP's committed by the Company motivated strikers to
prolong their work stoppage. In addition, the Company filed an exception
to the ALJ's failure to find that, even if the strike was converted into
an unfair labor practice strike, it was reconverted into an economic strike
prior to the Union's unconditional offer to return to work.
On September 30, 1994, the Board rendered a decision and order
reversing the ALJ's decision. F.L Thorpe & Co., Inc., 315 NLRB No. 22.
Relying upon both objective and subjective analyses, the Board held that
the Union's economic strike converted into an unfair labor practice strike
on or about May 12, 1991. The Board further held that the Company never
successfully reconverted the strike into an economic strike. The Company
presently challenges each of the Board's conclusions.
II. STANDARD OF REVIEW
NLRB unfair labor practice actions are formal adjudications, which
are governed by the Administrative Procedures Act. Additionally, 29 U.S.C.
§ 160(b) (1988) provides that NLRB unfair labor practice actions "shall,
so far as practicable, be conducted in accordance with the rules of
evidence applicable in the district courts of the United States under the
rules of civil procedure applicable for the district courts of the United
States." As a result, the agency's opinion must contain "findings and
conclusions, and the reasons or basis therefore, on all the
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material issues of fact, law, or discretion presented on the record." 5
U.S.C. § 557(c) (1994).
When a court reviews the NLRB's opinion, it must "hold unlawful and
set aside agency action, findings, and conclusions found to by . . .
unsupported by substantial evidence." 5 U.S.C. § 706(2)(E) (1994); see
also 29 U.S.C. § 160(e) (the court must determine whether the Board
correctly applied the law and whether its findings of fact are supported
by substantial evidence on the record considered as a whole); Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); NLRB v. American Linen
Supply Co., 945 F.2d 1428, 1431 (8th Cir. 1991). Substantial evidence is
more 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 (citation omitted).
III. DISCUSSION
The parties do not dispute that the strike began as an economic
strike; nor do the parties dispute the ALJ's findings that the Company
committed the ULP's alleged in the amended complaint in this case. The
first issue to be addressed, therefore, is whether the Board erred in
concluding that the ULP's committed by Company agents converted the Union's
economic strike into an unfair labor practice strike.
The commission of ULP's by an employer during a strike that began as
an economically motivated strike does not automatically convert that strike
into an unfair labor practice strike. Gaywood Mfg. Co., 299 N.L.R.B. 697, 700
(1990); C-Line Express, 292 N.L.R.B. 638, 638 (1989). Rather, the NLRB
"General Counsel must establish that the unlawful conduct was a factor (not
necessarily the sole or predominant one) that caused a prolongation of the
work stoppage." C-Line, 292 N.L.R.B. at 638; see also Gaywood, 299 N.L.R.B. at
700. In other words, there must be a causal connection shown between the
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employer's unlawful conduct and a prolongation of the strike. See, e.g.,
Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1079-80 (1st Cir.
1981).
Both subjective and objective factors may be probative of conversion.
Id. at 1080. Applying a subjective analysis, the Board and reviewing court
may give substantial weight to the strikers' own characterization of their
motive for continuing to strike after the unfair labor practice. Applying
an objective analysis, the Board and reviewing court may consider the
probable impact of the ULP in question on reasonable strikers in the
relevant context. Id. Although the record will often permit an evaluation
of whether the strikers' knowledge of, and subjective reactions to, an
employer's unlawful conduct led to a prolongation of the work stoppage, the
presence or absence of evidence of such subjective motivations is not
always the sine qua non for determining whether a conversion has occurred.
C-Line, 292 N.L.R.B. at 638. Rather, certain types of unfair labor practices
by their very nature will have a reasonable tendency to prolong a strike.
Id.; see, e.g., Vulcan Hart Corp. v. NLRB, 718 F.2d 269, 276 (8th Cir.
1983) (employer's withdrawal of union recognition clearly prolonged strike
because it put an end to contract negotiations).
In considering the strikers' subjective motivations in this case, the
ALJ determined that
the single most compelling aspect of the entire record is that
each of the former striking employees, who testified on behalf
of the General Counsel, stated that, notwithstanding the
aforementioned unfair labor practices committed while the
strike continued, the discussions at their union meetings, with
regard to continuing the strike, centered on the need for a
collective-bargaining agreement and on the desire to be treated
fairly in any agreement. Other than Theresa Otto, not one
witness mentioned the unfair labor practices as even being a
factor in the decisionmaking process . . . .
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F.L. Thorpe, 315 NLRB No. 22, at 13. In reversing the ALJ, however, the
Board concluded that the record contains "ample evidence that the strikers'
subjective motivations for continuing the strike in fact did change as a
result of the unfair labor practices." Id. at 4. Significantly, in
reaching this conclusion, the Board inferred a change in the strikers'
subjective motivations based upon its conclusion that the ULP's "caused
consternation among the employees so as to prolong the strike." Id.
In Chicago Beef Co., 298 N.L.R.B. 1039 (1990), enforced, 944 F.2d 905
(6th Cir. 1991), the NLRB held that an economic strike had been converted
into an unfair labor practice strike as a result of the employer's unlawful
conduct; in support of its decision, the NLRB relied upon subjective
evidence (i.e. strikers' testimony) that the employer's unlawful conduct
"caused consternation among the striking employees." Id. at 1040. The
NLRB found further support for its subjective analysis in an analysis of
the objective evidence on the record. See id.
In this case, the Board states that "where, as here, the unfair labor
practices are of a type which the Board has found objectively tend to
prolong a strike, the Board has inferred a change in strikers' subjective
motivations where there is evidence that the unfair labor practices ``caused
consternation among the striking employees.'" F.L. Thorpe, 315 NLRB No.
22, at 4 (emphasis added) (citing Chicago Beef, 298 N.L.R.B. at 1040). We hold
that the Board committed legal error in analyzing the strikers' subjective
motivations by ignoring entirely the strikers' testimony which clearly
establishes that the work stoppage in this case remained economically
motivated throughout the length of the strike, and instead using objective
criteria to infer conversion to a ULP strike under the "caused
consternation" test.
Furthermore, we find the Board's holding that the strike converted
to an unfair labor practice strike to be unsupported by
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substantial evidence on the record. As the ALJ aptly noted, the most
compelling aspect of the record in this case is the testimony of striking
employees who indicated that, notwithstanding the ULP's committed by
Company agents, the discussions at union meetings centered upon the need
for a collective bargaining agreement and the desire to be treated fairly
in any agreement. For example, during Linda Smith's cross-examination
before the ALJ, Smith testified as follows:
Q: The reason that you were told at the union meeting
you were going out on strike in April [of 1991] was to get a
better contract, is that not correct?
. . . .
A: The union didn't tell us to do this. We voted it
in, all of us girls voted it in, it was our choice to do.
Q: And your vote was you want to go on strike to get a
better contract?
A: Yes, sir.
Q: And that's the reason you voted, is that correct?
A: Yes, sir.
. . . .
Q: And every time the subject came up [at union
meetings] the reason that you voted to continue the strike was
to get a better contract, is that not correct?
A: That's right.
Q: And that is the reason you are currently out on
strike, is that not correct?
A: Yes, it is.
. . . .
Q: Is that the stated reason you people are out on
strike, to get a better contract?
A: To get a contract with Thorpe, yes.
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Q: And that's the only reason, is that not correct?
A: Yes, it is.
. . . .
JUDGE LITVACK: And the reason for the continuation, as
Mr. Berens asked you, the discussion for continuing the strike
centered on the fact that you people wanted to get a better
contract?
A: To get a contract, yes.
Trial Transcript at 95-97 ("Tr. at 95-97"). Cindy Kruse similarly
testified on cross-examination that the strikers' discussions about
continuing the strike always centered around obtaining a more favorable
contract. Tr. at 139-44. For example, Kruse testified as follows:
Q: Is the reason that you have been told by the Union
that you're striking is to get a better contract?
. . . .
A: It's what we want.
. . . .
Q: Now as to discussions beginning the strike, it was
all centered around getting a contract, wasn't it?
A: Yes.
. . . .
Q: Okay. Now have you had discussions since then about
continuing the strike?
A: Yes.
Q: And all of those discussions have always centered
around getting a contract, haven't they?
A: A contract, and for them to start negotiating.
Q: Yes. So the Company would negotiate better with you
and you would get a contract, is that right?
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A: Hopefully.
. . . .
Q: That's the reason that's been discussed and why you
continue to strike?
A: Yes.
Q: And there's been no other reasons discussed as to
why you've gone on strike, has there?
A: No.
. . . .
JUDGE LITVACK: I take it since the strike began
employees at union meetings have discussed whether they ought
to continue the strike?
A: Yes.
JUDGE LITVACK: All right. The reasons that the
employees have discussed, do they all have to do with contract
reasons, getting better health, better safety conditions, have
they all centered on those type[s] of issues?
A: Yes.
JUDGE LITVACK: Have they involved anything else?
A: No.
Tr. at 140, 142-44. Employees Roxanne Boyer, Susan Cox, Deborah Young, and
Kathy Bergstrom also testified on cross-examination that the sole reason
discussed among strikers for continuing the strike was to obtain a better
contract. See Tr. at 172-73, 196-97, 211-14, 218-19, 281-84. Lastly, with
regard to the testimony of Theresa Otto concerning the strikers' subjective
motivations, Otto's testimony may be characterized as ambiguous, at best.
When asked by Judge Litvack whether Sandy Sanke's comments were ever
discussed among strikers as a reason for continuing the work stoppage, Otto
replied that Sanke's comments "made us angry and more determined to get a
fair contract." Tr. at 236-37. In an
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effort to pin down Otto's testimony concerning the issue of conversion,
Judge Litvack initiated the following exchange:
JUDGE LITVAK: [I]t's alleged that this was no longer an
economic strike, a strike to get a contract, but it turned into
an unfair labor practice strike, protesting the activity of the
-- the Employer's activities during the strike. Now I'm asking
you, did you ever hear any of that expressed as a motivating
factor for continuing the strike? That now we're protesting
all the things that the company did during the strike.
A: Yeah.
JUDGE LITVACK: All right. Now tell me what you heard.
A: Basically --
JUDGE LITVACK: Not basically. I want to know comments
that you heard.
Tr. at 239. Otto's subsequent testimony, however, fails to establish that
the strikers' subjective motivations had changed; rather, Otto's testimony
appears to indicate that the strike continued to be motivated by the
strikers' desire to obtain a contract with fair terms and benefits. See
Tr. at 239-40. In short, Otto failed to substantiate her affirmative
response to the question posed by Judge Litvack.
Moreover, the strikers' testimony is corroborated by additional
evidence of subjective intent on the record. As noted, at all times the
picket signs solely addressed economic reasons for the strike; at no time
did the picket signs change in response to ULP's committed by Company
agents. This evidence further belies the Board's conclusion in this case.
Based upon our detailed review of the record in this case, we find
the Board's subjective analysis to be unsupported by substantial evidence
and otherwise contrary to law. We further
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find that the record is capable of supporting only one conclusion with
regard to the strikers' subjective motivations; namely, that at no time
subsequent to the strike's inception did the strikers' subjective
motivations for continuing to strike change in response to ULP's committed
by Company agents.
With regard to an objective analysis, the ALJ noted that the NLRB has
held that an employer's "``unlawful conditioning of reinstatement on
resignation from the [u]nion is comparable in effect to conduct such as
unlawful withdrawal of recognition during an economic strike -- an unfair
labor practice that, by its nature, has a reasonable tendency to prolong
the strike.'" F.L. Thorpe, 315 NLRB No. 22, at 13 (citing Gaywood, 299
N.L.R.B. at 700). The ALJ, however, rejected the General Counsel's argument
that, in light of Gaywood,
notwithstanding the subjective evidence [on the record],
including the former striking employees' own belief that the
objective of the strike . . . , even in the face of unfair
labor practices, remained economic, the mere existence of
evidence, establishing the resignation from union membership
condition for returning to work, satisfies the General
Counsel's burden of proof that [Thorpe's] misconduct prolonged
the strike, thereby converting it to an unfair labor practice
strike.
F.L. Thorpe, 315 NLRB No. 22, at 14. In so doing, the ALJ noted that in
Gaywood the NLRB specifically relied upon crucial evidence of sufficient
dissemination of the employer's unlawful condition among the striking
employees. Indeed, the ALJ correctly observed that, notwithstanding the
broad language adopted in Gaywood, "the subjective fact of dissemination
remains necessary to establish that the effect of the [conditioning of
reinstatement on resignation from the union] was not isolated." Id. The
ALJ found that because the evidence showed that only two of the sixty-seven
striking employees (i.e. Smith and Kruse) were aware of the unlawful
conditioning of reinstatement on resignation from the
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union, evidence of sufficient dissemination was lacking.2 The ALJ
therefore found that deference should be accorded the abundant testimony
offered by the strikers regarding the economic rationale for their strike.
Accordingly, the ALJ rejected the General Counsel's contention that the
mere fact that Thorpe unlawfully conditioned reinstatement upon resignation
from the Union is sufficient, in and of itself, to have converted the
employees' economic strike into an unfair labor practice strike.
The Board disagreed with the ALJ's finding that the Company's
unlawful conditioning of reinstatement was not sufficiently disseminated.
The Board relied in significant part upon the dissemination of Lamphere's
statement to Susan Cox. Notably, however, no evidence was introduced of
the time frame within which such dissemination occurred.
Upon review, we agree with the ALJ's decision which recognizes that
evidence of sufficient dissemination is necessary in order to establish
that the effect of the unlawful conditioning of reinstatement was not
isolated. Given that Lamphere's statement was made prior to the inception
of the strike, coupled with the fact that, as the General Counsel conceded,
the strike began as an economic strike, the record in this case fails to
establish sufficient dissemination of the unlawful conditioning of
reinstatement following the inception of the work stoppage. Rather, as the
ALJ found, the record clearly indicates only that two of the sixty-seven
strikers were aware of the unlawful
2
Judge Litvack noted that although Susan Cox received an
identical condition from Supervisor Lamphere, such occurred prior
to the start of the strike, and evidence that such was disseminated
was never placed in any particular time frame. In addition, the
General Counsel conceded that the strike was economically motivated
at the outset. Judge Litvack further noted that the record is
bereft of evidence that Tribble's threat to Smith and Kruse
regarding the setting back of employees' anniversary dates for each
week of the strike was ever disseminated to any other employee.
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condition for returning. Accordingly, we find the Board's holding to the
contrary to be unsupported by substantial evidence on the record.
Finally, with regard to Sandy Sanke's comments to picketers during
June, July and August of 1991, the ALJ found that although the record
contained evidence of wide dissemination of these comments among the
striking employees, there was no record evidence that such had any impact
on the underlying rationale for the strike, which always remained focused
upon obtaining a more favorable collective-bargaining agreement. F.L.
Thorpe, 315 NLRB No. 22, at 14.
The Board, however, held that in light of Sandy Sanke's high position
in the Company's managerial hierarchy, her statements concerning
termination reasonably tended to prolong the strike and therefore afforded
a sufficient and independent basis for finding a conversion. Id. at 3.
We disagree. Although one might infer that comments such as those made by
someone of Sanke's stature within the Company might objectively tend to
prolong a strike, such comments do not provide an independent basis for
finding a conversion in this case in light of the overwhelming subjective
evidence to the contrary offered by the strikers themselves that is
corroborated by additional record evidence of subjective intent. In short,
the Board erred by substituting its own judgment concerning the alleged
conversion in place of ample credible record evidence provided and
corroborated by numerous strikers in testimony before the ALJ which belies
entirely any finding of such a conversion. Indeed, the strikers' testimony
is particularly compelling in this case because it clearly is not the
"self-serving rhetoric of sophisticated union officials and members
inconsistent with the true factual context." C-Line, 292 N.L.R.B. at 638
(citing Soule Glass, 652 F.2d at 1080). Accordingly, we find the Board's
determination that its objective analysis afforded a sufficient and
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independent basis for finding a conversion to be unsupported by substantial
evidence on the record.
IV. CONCLUSION
For the foregoing reasons we hold that the Board's determination is
unsupported by substantial record evidence and, with regard to its
subjective analysis in this case, otherwise not in accordance with law.
We reverse the decision of the Board holding that the ULP's committed by
Company agents converted the Union's strike from an economic strike into
an unfair labor practice strike. Rather, as the ALJ originally found, we
find that the record fails to support a finding of conversion in this case.
Because we find that no conversion occurred, we need not address the issue
of reconversion. We enforce the Board's order in part and deny enforcement
in part, in accordance with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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