American Linen Supply Co.

National Labor Relations Board - Board Decisions

Oct 23, 1989

297 N.L.R.B. 137 (N.L.R.B. 1989)

AMERICAN LINEN SUPPLY CO 137
American Linen Supply Company and United Food
and Commercial Workers Union, Local No.
1116. Case 18-CA-10346
October 23, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 7, 1988, Administrative Law
Judge Robert W Leiner issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting brief and the General Counsel filed cross-
exceptions and a supporting brief The Respondent
filed an answering brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and bnefs l and
has decided to affirm the judge's rulings, findings,2
and conclusions and to adopt the recommended
Order
1 In finding that the Respondent, through its
October 2 distribution of the memorandum to strik-
ers, both threatened strikers with discharge ' for
striking and thereafter effectively discharged them,
in violation of Section 8(a)(3) and (1) of the Act,
we do not rely on Chromalloy American Corp, 286
NLRB 868 (1987), enf denied 873 F 2d 1150 (8th
Cir 1989), cited by the judge Rather we rely on
Mars Sales & Equipment Co, 242 NLRB 1097,
1101, 1102 (1979), enfd in pertinent part 626 F 2d
567, 572-573 (7th Cir 1980), and W C McQuaide,
Inc , 237 NLRB 177, 179 (1978), enfd on other
grounds 617 F 2d 349 (3d Cir 1980) In each of
those cases the Board held, that an employer who
informed lawful economic strikers that they had
been permanently replaced when in fact the em-
ployer had not obtained such replacements, had
thereby terminated the strikers in violation of Sec-
tion 8(a)(3) and (1) of the Act Although an em-
ployer has the right under NLRB v Mackay Radio
& Telegraph Co, 304 US 333 (1938), to perma-
nently replace economic strikers, this right does
not extend to withholding from them the right to
return to their unoccupied jobs simply because
they have gone out on strike A false statement
'The Respondent's request for oral argument is denied as the record,
exceptions, and briefs adequately present the Issues and the positions of
the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
that permanent replacements have been obtained
accomplishes this unlawful end NLRB v Mars
Sales & Equipment Co, supra, 626 F 2d at 573
In the present case, on October 2, the day the
strike began, the Respondent's district manager,
Edward L Pajunen, distributed a memorandum to
employees (first in a misdated version and then
with the date corrected) about 10 minutes or so
before 7 a m, the starting time for work The
memorandum told the striking employees that they
had "until 7 a m" to "return to work" and that if
they did not, "you are permanently replaced"
Since the memorandum was drafted by Pajunen
immediately after a confrontation with the union
president over what was, to the Respondent, the
unanticipated commencement of a strike on that
morning, we find it reasonable to infer, particularly
in the absence of any evidence to the contrary, that
the Respondent in fact made a false statement
when it indicated that striking employees would
actually be permanently replaced by 7 a m Thus,
at the time it was distributed, the memorandum
constituted an unlawful termination threat under
the principles of McQuaide and Mars When the
time specified in the ultimatum arrived without the
Respondent's having corrected its erroneous re-
placement claim and without the employees'
having ,yielded to the threat by abandoning their
strike at the outset, the unlawful terminations oc-
curred 3
2 The General Counsel has excepted to the
judge's failure specifically to conclude that the Re-
spondent violated Section 8(a)(1) by its solicitation
of employee support and assistance to employees, in
their efforts to withdraw from the Union although
the judge included a provision in his recommended
Order reflecting such a violation We find merit in
this exception As the judge found, Personnel Man-
ager Gustafson solicited ai least one employee to
withdraw from the Union and the Respondent
aided employees by furnishing withdrawal forms
and notaries during work time to help in the proc-
essing of the withdrawal cards Accordingly, we
find that the Respondent's aid and support to em-
ployees in the filing of the withdrawal cards violat-
3 Because the violations here are predicated on the employer's false-
hood concerning permanent replacements, rather than on the theory of
Chromalloy American Corp, supra (In which the Board found that the em-
ployer acted unlawfully because It chose words, whether intentionally or
negligently, that threatened discharge as opposed to replacement), we
need not consider the significance of either Production Manager Mlaker's
mid-December 1987 statement to striking employees Carpenter and Perry
or a banner referring to "striking employees" that the Respondent dis-
played on January 8, 1988 The judge Inferred from the former an admis-
sion that the Respondent had Intended to terminate strikers on October 2,
and the Respondent relied on the latter as evidence that it regarded the
strikers as striking employees rather than discharged employees Both are
Irrelevant to the analysis on which we rely
297 NLRB No 18
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ed Section 8(a)(1) and thus tainted the Respond-
ent's withdrawal of recognition on October 6,
1987 Texaco, Inc , 264 NLRB 1132 (1982), enfd
722 F 2d 1226 (5th Cir 1984), and cases cited
therein Further, as we find that the Respondent's
alleged doubt of majority support was tainted by
its unlawful solicitation and support of employees
in the filing of their withdrawal cards, as well as
by its threatening the strikers with discharge and
discharging them on October 2, we conclude that
the Respondent violated Section 8(a)(5) and (1) by
withdrawing recognition from the Union on Octo-
ber 6 We therefore find it unnecessary to rely on
the judge's inference that news of the unlawful dis-
charge was disseminated throughout the plant by
October 6 in finding that the withdrawal of recog-
nition was unlawful 4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Amencan
Linen Supply Company, Hibbing, Minnesota, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order
4 We also find merit in the General Counsel's exception to the judge's
failure to find that the Respondent's unlawful discharge of the stnkers on
October 2 and its unlawful withdrawal of recognition from the Union on
October 6, converted the economic strike into an unfair labor practice
strike Though the judge decided that It was unnecessary to make a find-
ing on the question of whether the economic strike had converted to an
unfair labor practice strike, he did alternatively state that if such a finding
were necessary he would find that the stnke had converted For the rea-
sons stated by the judge in his alternative analysis, we find that the Re-
spondent s unlawful discharge of the strikers on October 2 and its unlaw-
ful withdrawal of recognition from the Union on October 6 converted
the economic strike Into an unfair labor practice strike See also C-Line
Express, 292 NLRB 638 fn 4 (1989) We note, however, that It is unnec-
essary to modify the recommended Order in this respect as it already
provides for the reinstatement of the strikers and the award of backpay
Robert V Johnson, Esq , for the General Counsel
Cecil R Hedger, Esq (Nelson & Harding, P C ), of
Denver, Colorado, for the Respondent
William D Watters, Esq (Halverson, Watters, Bye, Downs
& Maki, Ltd), of Duluth, Minnesota, for the Union
DECISION
STATEMENT OF THE CASE
ROBERT W LEINER, Administrative Law Judge This
matter was heard on several occasions on and between
May 18 and June 2, 1988, in Hibbing, Minnesota, upon
the General Counsel's complaint' alleging, in substance,
that Respondent violated Section 8(a)(1), (3), and (5) of
the Act by
1 The complaint is dated April 28, 1988 The Union s underlying unfair
labor practice charge was filed and served on January 19, 1988, and a
first amended charge was filed and served on March 21, 1988
(a) On October 2, 1987, telling its employees engaged
in picketing in support of an economic strike at Respond-
ent's Hibbing facility, who had not been permanently re-
placed, that they had been permanently replaced, there-
by telling the employees that they had been terminated
(b) On or about October 5 and 6 unlawfully supported,
encouraged, and aided employees in the circulation of a
petition seeking to decertify United Food and Commer-
cial Workers Union, Local No 1116 (the Union)
(c) On or about October 22, 1987, unlawfully interro-
gated employees concerning their support for the
Union 2 With regard to the violation of Section 8(a)(3)
of the Act, the complaint alleges that on October 2,
1987, the Respondent discharged seven named employees
because of their engaging in a strike and because of their
union activities
With regard to violation of Section 8(a)(5), the com-
plaint alleges that on October 6 and October 23, Re-
spondent unlawfully withdrew its recognition of the
Union as the exclusive collective-bargaining representa-
tive of a unit of Respondent's employees and has thereaf-
ter failed or refused to bargain with the Union concern-
ing employees in that unit, and that Respondent engaged
in this violation of Section 8(a)(5) notwithstanding an ab-
sence of a good-faith doubt that the Union no longer
represented a majority of the employees in the unit and
after having engaged in unfair labor practices in violation
of Section 8(a)(1) and (3) of the Act Finally, General
Counsel alleges that since on or about October 2, the
economic strike commencing October 2 was prolonged
by unfair labor practices and became an unfair labor
practice strike
Respondent's timely filed answer admits certain allega-
tions of the complaint, denies others, and denies commis-
sion of any unfair labor practices
At the hearing, all parties were represented by coun-
sel, given full opportunity to call and examine witnesses,
submit oral and written evidence, and to argue on the
record At the close of the hearing, counsel for the par-
ties waived final argument and reserved the right to
submit postheanng briefs Counsel for the General Coun-
sel and counsel for Respondent submitted timely post-
hearing briefs 3 ,
On the entire record, including the briefs, and from
my particular observation of the demeanor of the wit-
nesses as they testified, I make the following
2 I dismissed the allegation concerning unlawful interrogation at the
close of General Counsel's case due to insufficient proof The matter has
not been raised further by the General Counsel in his brief
3 Bearing date of August 29, 1988, Respondent submitted a motion for
leave to file a reply brief together with a reply brief The motion and
reply brief, according to Respondent, are addressed "solely to the
claimed misrepresentation of the underlying record' by the General
Counsel and resulting misleading arguments Since I do not rely on the
briefs of any party for my factual determinations, nor, ordinarily, on the
arguments of counsel, based on their factual analyses, for my ultimate
conclusions and dispositions, in the exercise of my descretion, Coco-Cola
Bottling Works, 186 NLRB 1050 fn 2 (1970), I deny Respondent s motion
and reject the proffered reply brief
AMERICAN LINEN SUPPLY CO 139
FINDINGS OF FACT
I RESPONDENT AS STATUTORY EMPLOYER
Respondent, a Delaware corporation with places of
business in St Paul, St Cloud, Bemidji, Hibbing, and
Duluth, Minnesota, at all material times has been en-
gaged in the business of the laundering and delivery of
linens for restaurants, gas stations, and other commercial
customers During the calendar year ending December
31, 1987, Respondent, in the course and conduct of its
business operations, purchased and received at its Minne-
sota facilities products goods and materials valued in
excess of $50,000 directly from points outside the State
of Minnesota, and during the same period, performed
laundry service at its Minnesota facilities valued in exess
of $50,000 which services were performed for and deliv-
ered to customers located outside the State of Minnesota
Respondent concedes and I find that at all material times
Respondent was an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
II THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union, at all material times, has been and is a
labor organization within the meaning of Section 2(5) of
the Act 4
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
The complaint alleges and Respondent admits that the
following employees at its Hibbing, Minnesota facility
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act
All driver salesmen, maintenance men, maintenance
helpers, washmen, extractor-dry cleaners, rug wash-
ers, roof-makeup, general launderers, C R T em-
ployees and root foremen employed at its Hibbing,
Minnesota facilities, excluding office clerical em-
ployees, all other employees, guards and supervi-
sors
The complaint alleges and Respondent admitted at the
hearing that, at all material times through October 6,
1987, the Union, pursuant to Section 9(a) of the Act, has
been the designated exclusive collective-bargaining rep-
resentative of the above unit and has been recognized as
such by Respondent Furthermore, the complaint, alleges
and Respondent admits that such recognition has been
embodied in successive collective-bargaining agreements,
the most recent of which was in effect for the period
January 1, 1985, through December 31, 1986, which rec-
' Respondent also concedes, as alleged, that Edward Pajunen,
district/plant manager (Hibbing), Ruth Gustafson, office and personnel
manager, and Frank Mlaker, production manager, at all material times
have been, and are, Respondent's supervisors and agents, respectively,
within the meaning of Sec 2(11) and (13) of the Act
ognition was extended by agreement of the parties
through January 31, 1987 .
Moreover, the complaint alleges and Respondent
admits that on or about October 6, 1987, and again on or
about October 23, 1987, Respondent withdrew recogni-
tion of the Union as the exclusive collective-bargaining
representative in the above unit, and since those dates,
Respondent has failed and refused to recognize and bar-
gain with the Union as the exclusive collective-bargain-
ing representative in that unit .
Lastly, the complaint alleges and Respondent admits
that on or about October 2, 1987, certain employees of
the Respondent represented by the Union and employed
at Respondent's Hibbing, Minnesota facility ceased work
concertedly and engaged in a strike
The Union has been the collective-bargaining repre-
sentative in the Hibbing unit for about 20 years The
final 2-year agreement (G C Exh 10) between the par-
ties covering this unit expired December 31, 1986 The
agreement was executed by Edward Pajunen as general
manager, Bert Harstad as union president, Russ Johnson
as union business representative, and Respondent's vice
president, B M Steiner Collective bargaining for a fur-
ther contract reached impasse in January 1987 on the
Respondent's final proposal of January 19, the existing
contract was extended into February 1987, but following
the February 6, 1987 negotiation, impasse was declared
again and on February 24 1987, Respondent notified the
Union that it was implementing its final offer of January
19, 1987
As early as November 1986, in the face of the ap-
proaching termination of the collective-bargaining agree-
ment (December 31, 1986), in collective-bargaining nego-
tiations with the Union, Respondent was aware of the
possibility of a strike to support the Union's bargaining
demands
On or about February 6, 1987, Pajunen dictated a
memorandum (R Exh 10) and had it placed on the em-
ployee bulletin board The document was drafted be-
cause Pajunen received notice that a strike might com-
mence on February 9, 1987 The document recites that
the Union notified Respondent that the Respondent's
final offer was not acceptable and a strike would take
place "soon" The document further observes that Re-
spondent intended to continue operation but did not
intend to hire permanent replacements for employees
who would continue to work The document notifies the
employees that Respondent would inquire of them con-
cerning which of them would report to work if there
was a strike on Febivary 9 Pursuant to Pajunen's memo-
randum, Production Manager Frank Mlaker conducted
interviews with individual employees and groups of em-
ployees, sometimes in the presence of the union shop
steward, concerning their intentions with regard to con-
tinued working if there were a strike on February 9 He
was never asked the meaning of "permanent replace-
ment" by any of the employees as the term was used in
Pajunen's posted memorandum (Tr 1009)
In the month before, on January 18, 1987, Respondent
had placed advertisements in the local newspaper declar-
ing that Respondent was accepting applications for per-
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sons "interested in becoming employees of a progressive
linen supply company 5 Respondent spent 2 days inter-
viewing the potential replacements and kept files on
them As it will be seen hereafter, when the stnke threat
was later renewed at the end of September, the applica-
tions were apparently reviewed Respondent also com-
piled a list of supervisors who would be brought to Hib-
bing to train replacements and to assist in production and
delivery functions (Tr 1068)
A strike vote of January 12 among 30 unit employees
showed an overwhelming vote in favor of the stnke (to
commence after the expiration of the 1-month contract
extension ending February 1987) In spite of the vote, no
strike occurred The record demonstrates that commenc-
ing in February 1987, there was hostility between Union
Business Agent Russ Johnson and unit employee Roger
Extrum (a member of the Union's contract negotiating
committee) concerning Johnson's fear that Extrum was
undermining Johnson's position as the Union's collective-
bargaining representative in dealing with Respondent
There is also uncontradicted, credited evidence that, in
mid-February 1987, Johnson told Extrum, at a union
meeting, that he would "bury" both Respondent and
"that son-of-a-bitch Ed Pajunen "
The record is devoid of evidence concerning relation-
ships between Respondent and the Union and, indeed,
the Union and the unit employees, in the period Febru-
ary through September 1987
Amelia Rootes worked in the Hibbing plant as a tem-
porary employee performing bargaining unit work in
June 1987 and was laid off immediately after Labor Day
for lack of work In August, however, Rootes, having
heard employees talk about a union in the plant, spoke to
Production Manager Frank Mlaker and Personnel
Manger Ruth Gustafson concerning whether there was a
union in the plant Both Mlaker and Gustafson, in sepa-
rate conversations, told her that there was no union rec-
ognized in the plant (Mlaker) and that there was no
union in the plant (Gustafson) Although Mlaker denied
this element of his conversation with Rootes, I credit
Rootes Since Gustafson was never called as a witness
for any purpose, Rootes' testimony concerning this con-
versation with Gustafson is uncontradicted I credit
Rootes
On September 30, 1987, the Union called a meeting to
take a strike vote Eleven of 17 attending employees (a
total of 38 employees in the unit, G C Exhs 1(a), 2)
voted in favor of a strike to commence on Friday, Octo-
ber 2, 1987 At the September 30 strike meeting, Union
President Burt Harstad and Union Business Agent Russ
Johnson mentioned to employees what could happen to
them if they elected to go on strike (R Exh 23, p 9)
One employee recalled that Union President Harstad said
that if they struck they could be permanently replaced
(Tr 616), other employees heard Johnson and Harstad
say that they could be "terminated" (Tr 473, 968)
5 To the extent that General Manager Pajunen testified that the notices
in the newspaper were "for applicants for permanent replacement" (Tr
1067), it must be noted that the newspaper advertisements do not refer to
permanent replacements
A The Strike and Picketing of October Z 1987
1 The picketline conversation
Starting time for inside unit employees is 7 a m Pa-
junen arrived at the plant about 6 15 a m and by that
time observed employees with picket signs at the three
entrances to the plant Sometime after about 6 30 a m,
Pajunen came out of the front entrance of the plant and
saw Union President Harstad with Business Agent John-
son standing near the curb in the street There were a
total of seven female employees acting as pickets and
picketing at the three entrances Linda Carpenter, Ruth
Johnson, Marjorie Richards, Betty Judnitsch, Linda L
Perry, Roberta Hecimovich, and Mary J Suzick 6
The recollections of several witnesses to conversations
between Pajunen, the pickets and Harstad vary Betty
Judnitsch recalled that Pajunen asked Harstad "Did you
tell these women what would happen to them if they
sent out on strike?" She recalls that Harstad answered
"yes" and that Pajunen, appearing to be upset and speak-
ing in a raised voice, not his normal tone, said to the em-
ployees "Did he tell you you would be fired? and the
employees answered "yes" Union President Bert Harstad
recalled that Pajunen asked him "Have you talked to
these people?" When Harstad said, "Yes," Pajunen
asked, "Do they know they will be fired?" Harstad said
he made no reply
Mary Suzick recalls Pajunen asking Harstad "Did you
tell the girls what would happen if they didn't go to
work?" to which Harstad answered "Yes," adding "I
told them if they didn't go to work they would be termi-
nated and permanently replaced" She recalls that Pa-
junen said nothing
Linda Perry recalls that Pajunen asked Harstad "Did
you tell these people what would happen if they went
out on strike?" After Harstad said "Yes," Pajunen said
that "they are fired and permanently replaced"
Pajunen recalls that he asked Harstad if he had in-
formed the striking employees about the potential of
their being permanently replaced and that when Harstad
responded that he had, nothing further was said and Pa-
junen returned to his office
On the basis of the above conflicting testimony con-
cerning the October 2 picket-line conversation what was
said by Pajunen, Harstad and the employees, I conclude
that (1) Pajunen asked Harstad if he had told the em-
ployees what would happen if the employees went on
strike, (2) Harstad told him that he had, and (3) Pajunen
told the seven (or a majority of them) employees and
Harstad that they could be permanently replaced Con-
trary, for instance, to Linda Perry's and other witnesses
testimony, I conclude that Pajunen did not use the words
"terminated" or "fired" in that conversation I draw this
conclusion notwithstanding that, as noted hereafter, I
regard Perry, for instance, as a credible witness for other
purposes I do credit Pajunen whose testimony denies
use of the words "fired" or "terminated" I fully credit
Respondent's argument that the employees' recollection
o The complaint alleges that on or about October 2, 1987, Respondent
discharged the above-named seven pickets
AMERICAN LINEN SUPPLY CO 141
of the words "fired" or "terminated" which some of the
General Counsel witnesses said they heard Pajunen use,
came, rather, from their recollection of the September 30
union meeting where Harstad and Johnson might well
have used the words "terminated" or "fired" in describ-
ing what "permanently replaced" meant Further, on the
October 2 picket line, union agents Hardstad and John-
son told the pickets that Pajunen's use of "permanent re-
placement" was the equivalent of being "fired" (Tr 939)
Pajunen's use of the expression "permanently replaced,"
however, I find, as noted below, had no benign signifi-
cance
2 Pajunen's written communications to the
employees, October 2, 1987
After Pajunen returned to his office following, this
picket line conversation, he handwrote a notice to strik-
ing employees (R Br p 23)
10/2/87
To the Stnking employees of Amencan Linen—
Hibbing
You have until 7 A M, Fri Sept 2nd to return to
work If you have not, you are permanently re-
placed
You have the right to continue your hospitalization
and medical coverage at your expense Those forms
will be given to you
Edward L Pajunen
District Mgr
Pajunen photocopied this notice, returned to the street,
and distributed copies to all the striking empoyees be-
tween 6 30 and 645 a m There was no accompanying
conversation between Pajunen, any of the picketing em-
ployees, or the union agents
When Linda Perry received the document (G C Exh
5) from Pajunen, she noticed that the date was wrong, in
particular, that Pajunen had used the month of Septem-
ber in specifying the obligation to return to work when
it was already October 2 on which they were picketing
Perry commented on this to the other pickets who, she
recalled, chuckled over the matter
A few minutes later, after Pajunen had returned to the
office, he emerged again and distributed a second docu-
ment (G C Exh 6) This document was the same as the
first except that it now read that the employees had until
"7 a m Fnday, October 2, to return to work If you
have not, you are permanently replaced" By this time it
was about 6 50 a m None of the pickets, at that time, or
any other time, received any communication from Re-
spondent which changed or explained the terms of either
of these Pajunen communications which were distributed
to them on that morning The seven strikers nevertheless
continued to picket Three other unit employees (Pre-
bich, Lehman, Mortenson) who appeared on the picket
line at or about 7 a m were also served by Pajunen with
General Counsel's Exhibit 6 but crossed the picket line
(Tr 475, 624-625)
B Pre-Christmas Conversations with Production
Manager Frank Mlaker at the Shopping Mall
About a week before Christmas, striker Linda Carpen-
ter went Christmas shopping at the Irongate Mall near
Hibbing, Minnesota About 4 p m, she accidently met
Production Manager Frank Mlaker in the mall As Car-
penter asked him about Respondent's Christmas party
which had been held the night before, she saw stnker
Linda Perry coming from the other end of the mall Car-
penter motioned her to come over Linda Perry then
joined Linda Carpenter and Frank Mlaker Carpenter
told Mlaker that she had heard that the strikers' Christ-
mas present from the Company was to get their jobs
back, but Mlaker said that they could not get their jobs
back because they had been permanently replaced When
Linda Perry asked him why they could not get nd of the
replacements—(as Mlaker recalled, "scabs") Mlaker said
that Respondent could not do so because it would be
against the law Carpenter then asked if the strikers
could come back to work if they agreed to accept the
Respondent's IRA pension proposal rather than insist on
the Union's funded pension plan Mlaker asked if union
agent Russ Johnson was going to permit the employees
to suggest that Apparently when Carpenter and Perry
spoke of getting their jobs back, Mlaker, according to
Perry, said "[You] were all done as soon as [you] put
[your] signs on" (Tr 610, Perry) Carpenter recalls that
he said, at this point "As soon as you put that picket
sign on, you were no longer an employee of American
Linen" (Tr 662) At the end of the conversation, Mlaker
said that he would like to talk to Perry, Carpenter, and
the other striking employees over coffee and he would
explain to them further why they wouldn't be able to
have their jobs back (Tr 662) Mlaker denied telling
either of them that they were "done" as soon as they put
on the picket signs (Tr 1016) I do not credit his denial
C Employee Withdrawal of Support from the Union
Commencing Monday, October 5, 1987
On October 5, already dissatisfied with the Union's
poor representation, employee Kathryn Extrum over-
heard employees talking about getting rid of the Union
On the next day, October 6, she asked Personnel Manag-
er Ruth Gustafson if there was something she could sign
to get the Union out Gustafson said that she would
check into the matter Later the same day, Gustafson
sought out Extrum and handed her a typed paper (G C
Exh 3), which stated as follows
i
UFCW Local #1116
2002 London Road
P0 Box 6388
Duluth, MN 55806
To Whom It May Concern
I, Kathy Extrum, no longer desire to have Local
#1116 represent me as my bargaining agent, effec-
tive 10/6/87
Signed
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When Gustafson gave her the document, Extrum was
on the work floor on the way to the lunchroom The
document already had her name typed in and Gustafson
told her that she did not have to sign it if she did not
want to, that the matter was entirely up to Extrum At
the same time, however, Gustafson told her that if she
did chose to sign the document she should sign it before
a Notary Public who was downstairs in the employee
lunchroom Extrum then proceeded to the lunchroom
where she signed the document before the notary who
was sitting at a table She left the document (G C Exh
3) with the notary and noticed that there were similar
documents on the table in front of the notary Extrum
did not know who arranged for the notary to be present
but the notary public, Eugene Myer, is an officer of the
Security State Bank in Hibbing
During the week of October 5, Personnel Manager
Gustafson approached employee Mathew Caroon, the
Union's shop steward, while he was on his way to cof-
feebreak and handed him a document (whether his name
was already typed on it is unclear) similar to the one
which Gustafson handed to employee Kathryn Extrum
Caroon told Gustafson that he did not want to sign the
document and returned it to Gustafson There were no
witnesses to the transaction between Caroon and Gustaf-
son
Employee Jesse Lantz testified that he signed a similar
withdrawal notice on October 6, 1987, and first learned
of the availability of the withdrawal notice from a coem-
ployee He signed his withdrawal notice before a notary
public on worktime (Tr 263)
There is no dispute that there were 26 such notarized
employee statements, each demonstrating a desire not to
have the Union represent the employee for collective-
bargaining purposes (G C Exhs 4(a)-4(z)), that the doc-
uments were completely typed when each of the signers
saw them, that the signers did not know who prepared
them or where they were prepared
There is also no dispute that these documents were no-
tarized by three notary publics, that they are all officers
of the Security State Bank of Hibbing, and that Respond-
ent's plant manager, Edward Pajunen, is a director of
that bank None of the notaries testified and there is no
evidence concerning their presence at the Respondent's
premises to notarize these documents relating to union
representation There is also no dispute that each of these
26 documents were sent by certified mail to the Union
on and between October 7 and 27, 1987 Similarly un-
known is the question of who paid the metered postage
for the certified mail When the Union received these 26
documents, they were not honored as withdrawal re-
quests Russell Johnson testified that the Union believed
the documents to be Respondent-sponsored and not the
free expression of the employees who executed them
Likewise, there is no record proof concerning the
means by which these notarized employee statements
were tranferred to Respondent's possession In any
event, however, on October 6, 1987, Respondent sent a
telegram (R Exh 23, p 14) to the Union by which it
withdrew recognition, on the basis of about 23 (of the 26
withdrawal statements ultimately signed) withdrawal
statements (R Br p 44) There were 38 unit employees
at the time About a week before Christmas, Extrum
telephoned the NLRB Regional Office to discover
whether the Union had been decertified The NLRB rep-
resentative told her that there was no record of any de-
certification but that he would send her information re-
lating to decertifying the Union She thereafter received
a decertification petition from the Regional Office, typed
up the petition (G C Exh 2) in Gustafson's office after
working hours, got Personnel Manager Gustafson to
photocopy the employee withdrawal notices, got infor-
mation from Gustafson concerning the various classifica-
tions in the bargaining unit so that she could properly
type out the decertification petition, found an envelope
in the office, placed everything in an envelope and gave
it to her husband (Roger Extrum) who mailed the peti-
tion and supporting employee withdrawal documents to
the NLRB Regional Office The date of the filing of the
decertification petition is December 30, 1987
Discussion and Conclusions
A The October 2 1987 Occurrences on the
Picket Line
There is no dispute, and I find, that at the time of the
initiation of the strike and the subsequent picketing of
6 30 a m, October 2, 1987, the Union and employees at
Hibbing were engaged in a lawful economic strike
Within about 15 minutes of 7 a m, Pajunen served on
each of the seven striking pickets an ultimatum declaring
that they had until 7 a m to report to work, thereby
abandoning the picket line The ultimatum was that if
they did not do so "you are permanently replaced"
As the General Counsel properly points out, Pajunen's
written statement, twice served on the seven picketing
strikers, does not suggest that the employees might be re-
placed, could be or would be replaced, it states that they
are permanently replaced I further agree with the Gen-
eral Counsel that when, at 6 45 a m, the strike was only
about 15 minutes old, Respondent had not been aware of
the existence of the strike and picketing prior to that
period In that 15 minutes, there was no suggestion, that
Respondent, by 7 a m, actually hired any permanent re-
placements or reasonably had the opportunity to actually
hire permanent replacements Thus, on this record, as
Respondent concedes, there is no showing that perma-
nent replacements were ever actually hired
The discharge of economic strikers violates Section
8(a)(1) and (3) of the Act Mars Sales ci Equipment Go,
242 NLRB 1097 (1979), enfd 626 F 2d 567 (7th Cir
1980), W C McQuaide, Inc , 237 NLRB 177 (1978),
Abilities et Goodwill Inc , 241 NLRB 27 (1979), and
threatening employees that they will be discharged if
they engage in an economic strike is a violation of Sec-
tion 8(a)(1), Passavant Memorial Area Hospital, 237
NLRB 138 (1978) As the General Counsel further ob-
serves, falsely informing the strikers that they had been
permanently replaced when they have not been perma-
nently replaced constitutes evidence of an unlawful ter-
mination in violation of Section 8(a)(1) and (3) of the
Act Mars Sales ci Equipment Go, supra, W C
McQuaide, Inc , supra While it is true that an employer,
, AMERICAN LINEN SUPPLY CO 143
absent an implicit or accompanying threat of reprisal,
who truthfully informs employees of the possiblity of
being permanently replaced during a strike but fails to
explain all of the possible consequences of such replace-
ment does not violate Section 8(a)(1) of the Act, Santa
Rosa Blueprint Service, 288 NLRB 762 (1988), Chromalloy
American Corp, 286 NLRB 868 (1987), the very fact of
telling economic strikers that they "are permanently re-
placed" at 7 a m when, in fact, they had not been per-
manently replaced (then or at any other time) constitutes
not only evidence of the forbidden retaliatory threat
under Chromalloy American Corp, supra, but evidence of
an unlawful termination of employment, Mars Sales &
Equipment Co, supra at 1101, W C McQuaide, Inc ,
supra
I agree with Respondent that the record in this case
shows no evidence that any of the discharged strikers
were permanently replaced Respondent, argues, howev-
er, with regard to the allocation of the burden of proof,
that the instant case is not a case involving a refusal to
reinstate, and only after a striking employee offers to
return is the employer obliged to prove permanent re-
placement (R Br p 53 ) I regard Respondent's premise,
under the instant facts, to be inaccurate Consistent with
that position, however, Respondent further argues that
this is not "a refusal to reinstate case," but rather a
"straight discharge case" In the so-called straight dis-
charge case, Respondent argues that since General Coun-
sel raised the issue of permanent replacement as an ele-
ment of his case, then the General Counsel must establish
that essential element as part of the prima facie case of
proving an unfair labor practice (R Br p 54)
The Board, however, has taken a position contrary to
Respondent's argument In Mars Sales & Equipment Co,
supra, and W C McQuaide, supra, the Board, as here,
was faced with statements by employers prior to any
offer of return to work In Mars Sales & Equipment Co,
supra at 1100-1101, the Board held that an employer
communication to employees engaged in an economic
strike that the employer "hired a permanent replacement
for your position, and no longer will need your services,
effective immediately," not only was an unlawful termi-
nation of employment in violation of Section 8(a)(3) and
(1) of the Act because the statement was false, but also
held that the burden of proof to establish permanent re-
placement was on the employer "[because] this assertion
is based on matters within Respondent's peculiar knowl-
edge, the burden of establishing its truth rests on Re-
spondent" The court of appeals agreed NLRB v Mars
Sales & Equipment Co, 626 F 2d 567 (7th Cir 1980) In
sum, therefore, in the above cases, the Board ruled, with
regard to a statement which is false, concerning the per-
manent replacement of economic strikers, that it not only
constitutes a violation of Section 8(a)(1) as an' unlawful
threat, but the burden of proof, even absent a declined
employee offer to return to work, remains on the employer
to prove the "permanent replacement" of the allegedly
unlawfully discharged economic strikers, Mars Sales &
Equipment Co, supra, W C McQuaide Co, supra
Absent such proof the violation of Section 8(a)(3) is fur-
ther perfected Ibid
In short Pajunen's October 2 ultimatum falsely told the
economic strikers and other employees that they will
have been permanently replaced at 7 a m if they did not
abandon the strike This creates an 8(a)(1) and (3) viola-
tion under Chromalloy American Corp, supra, and
second, regardless of the falsity of the ultimatum, Re-
spondent failed to prove the threatened permanent re-
placement—at any time—thus providing a further basis
for concluding, as I do, that the General Counsel, prima
facie, proved that the seven picketing strikers were un-
lawfully discharged on October 2, 1987
B Production Manager Mlaker's Statements at the
Shopping Mall in December 1987
(a) If there were any doubt as to what Respondent's
October 2 intent was when Plant Manager Pajunen told
the employees that they had until 7 a m to report to
work or else they "are permanently replaced," Produc-
tion Manager Mlaker, in his pre-Christmas shopping mall
conversation, eliminated any such doubt I have found
that he told striking employees Carpenter and Perry,
about a week before Christmas at the Shopping Mall,
when they inquired whether they (i e, the strikers) could
return to work with the Union if they accepted the em-
ployers pension plan, that they were no longer Respond-
ent's employees ("done") as soon as they put the picket
signs on I infer from this statement that it was Respond-
ent's intent on October 2 to discharge any employees as
soon as they commenced identifying themselves as sup-
porters of the economic strike by wearing picket signs
and that when they did so, Respondent terminated
them 7 That it was Mlaker, rather than Pajunen who
made this statement is not crucial since the Supreme
Court has declared, where employees have just cause to
believe that an individual was acting for or on behalf of
management, that that individual's actions are attributa-
ble to the employer NLRB v Mars Saks & Equipment
Co, supra, citing Machinists v NLRB, 311 U S 72, 80
(1940) In the instant case, it appears on this record that
the second highest employer supervisor under Edward
Pajunen (plant manager) was Production Manager Frank
Mlaker I conclude that the employees could reasonably
believe that his statements were attributable to manage-
ment
C Respondent's Defenses
Respondent defends on various grounds It argues first
that Mlaker's denials concerning the pre-Chnstmas shop-
ping mall conversations with Linda Perry and Linda
Carpenter should be credited over Perry's and Carpen-
ter's testimony I credit Perry and Carpenter because of
the spontaneity and believability of their testimony upon
my observation of each of them, their mutual corrobora-
tion and my dissatisfaction with Mlaker's credibility con-
cerning his testimony denying parts of his conversation
7 I reach this conclusion because a "reasonable employee, having
heard Mlaker s admission of what actually underlay Respondent s motiva-
tion, would conclude that permanent replacement meant discharge,'
Chromalloy Corp, supra, for having worn the picket signs and refusing to
abandon the strike See also Palk Supply Corp, 249 NLRB 674 (1980)
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with Amelia Rootes, a former employee and a witness
with no financial stake in this litigation I found Rootes
to be a credible witness even in those elements which
were not fully supported in her written statement given
to a Board agent, 8 and I particularly credit that part of
her testimony, undefiled by Mlaker, relating to Mlaker's
expressed lack of surprise in Rootes' refusal to work
under nonunion conditions because of the proumon posi-
tion of her uncle This Rootes' testimony, in turn, led me
to generally credit her testimony concerning her conver-
sations with Mlaker and to discredit Mlaker, including
Mlaker's desire to get Rootes employment in a union
shop I have already discredited Mlaker's denial in telling
Rootes that, in August 1987, there was "no union" in
Respondent Supervisor Gustafson, according to Rootes,
made the same false remark to Rootes, and Gustafson
was not called to deny Rootes' testimony NLRB v
Laredo Coca-Cola Bottling Co, 613 F 2d 1338 (5th Cir
1980), cert denied 105 LRRM 2658 (1980) For the
above reasons, and because I was impressed by Carpen-
ter's corroboration of Perry, I do not credit Mlaker's de-
nials that he told Carpenter and Perry that they were
"done" or "no longer employees" of Respondent as soon
as they put on the picket signs (on October 2, 1987)
Respondent also defends on the ground that it consist-
ently treated the striking employees as employees (R Br
p 69) In particular, it stated that it posted a banner on
January 8, 1988 (Tr 1047), showing that the employees
who were on strike were still employees of the Company
by calling them "striking employees" On the other hand,
the evidence is uncontroverted that Mlaker had a sub-
stantial hand in the posting of the banner In fact, it was
wholly a management idea (Tr 1051) In that situation,
the banner becomes self-serving notwithstanding that it
was flown before the filing of an unfair labor practice
charge
Respondent also suggests that there was no union
animus in the record (R Br p 69) Since I have credited
Perry's and Carpenter's testimony that Mlaker told them
that they were "done" and no longer employees of Re-
spondent as soon as they put the picket signs on, that is
evidence of union animus Mlaker's conversations with
Rootes demonstrates further animus Pajunen's October 2
ultimatum to picketing strikers containing a false and un-
lawful threat of "permanent replacement" is also evi-
dence of union animus
Respondent also defends in the citation of the recent
Chromalloy American Corp, supra In that case, the em-
ployer sent written communications to striking employ-
ees on separate dates In the second communication, the
employer told the employees not only that they were
permanently replaced but that they were no longer em-
ployed by the employer Because the second communica-
tion referred to "former employment," the Board deter-
mined that the employees could reasonably have inter-
preted that statement as meaning that they had been dis-
charged for refusing to abandon the strike In this
8 The matters on which Respondent would impeach Rootes' testimony
were matters not appearing in her Board affidavit rather than testimony
contradictory of a prior sworn statement I regard this distraction as mg
nificant
regard, Respondent concedes only that the Pajunen letter
of October 2 was "perhaps infelicitous" (R 'Br p 81)
and notes that it was hurriedly written The fact of the
matter, however, is that Pajunen is not only the manager
of the plant but that he twice issued the threats of per-
manent replacement in anger and gave the threatened
strikers and three other employees to whom the ultima-
tum was delivered substantial time to think over his ulti-
matum The record is barren of any suggestion that this
ultimatum was ever abandoned or adequately repudiated
by Respondent Passavant Memorial Hospital, 237 NLRB
138 (1978)
In any event, however, Chromalloy is distinguishable
on its facts there was no suggestion in Chromalloy, as
here, of the clarity of the meaning of the threat of "per-
manent replacement" Here, Mlaker told the employees
that they were "done" as soon as they put the picket
signs on October 2
Respondent further defends on the ground that there
has been a showing of its "commitment" for the use of
permanent replacements and that Respondent is not obli-
gated to actually show actual arrival on the job of the
permanent replacements (R Br p 53) The problem
with this defense is that it is factually unsupported
There is no suggestion in the record that there was any
"commitment" for employee replacement of any kind,
permanent or otherwise The most that can be said is
that Respondent showed that it interviewed prospective
replacements and allegedly kept files on them This does
not prove that any prospective employee had received,
at any time, "commitment" for employment or that there
were any permanent replacements Respondent further
argues (Br p 53-54) that "no other inference is warrant-
ed" other than that the striking employees were "timely
replaced" Since there was no proof of any employment
commitment to anyone or other effort to actually employ
replacements, there can be no inference that the striking
employees were permanently replaced, timely or other-
wise
Respondent also defends on the ground that the Union
and some of the strikers (Suzick,. Johnson, Carpenter,
and Richards> appeared at a hearing before the Depart-
ment of Jobs and Training of the State of Minnesota in
January 1988 As a result of testimony taken in_that pro-
ceeding (R Exh 23), the referee determined that the em-
ployees were "terminated" within the meaning of the
statute (G C Exh 1(g)) On appeal, the decision of the
referee was reversed and the employees were disqualified
from unemployment benefits Respondent notes (Br p
35) that the reversal included the conclusions that al-
though the claimants contended that they were "termi-
nated," it was unclear on what evidence the claimants
depended to support that position The Minnesota tribu-
nal noted that when filing for unemployment benefits,
the strikers indicated that they did not report for work
because they were on strike, the claimants did not indi-
cate that they ,did not report for work because they had
been discharged (R Br p 35)
In the first place, there can be no question that the em-
ployees were engaged in an economic strike and did not
report for work because they were on strike The dis-
AMERICAN LINEN SUPPLY CO 145
charge came later In fact, the' strikers were discharged
because they refused to abandon the strike and come to
work Thus in interpreting the Minnesota statute con-
cerning why the employees did not report for work, it
was perfectly proper for the Minnesota tribunal to deter-
mine that the employees were engaged in a strike and
never did report for work because of that strike Of
greater importance, however, is the fact that although
strikers, including Carpenter, appeared and testified,
there is no suggestion on this record that there was any
inquiry made of Carpenter concerning her December
shopping mall conversations with Perry and Mlaker con-
cerning the fact that the strikers were "done" as soon as
they put the picket signs on Thus, although I received
in evidence the conclusions and indeed the nonverbatim,
partial transcript of the Minnesota proceedings, and have
considered such evidence, Serendippitty-Un-Ltd , 263
NLRB 768 (1982), I can give It little weight The Minne-
sota tribunal was interpreting its own statute with regard
to the lessons why the employees did not report for
work, i e, a strike, and, more important, there is no
showing that crucial later evidence of Respondent's
intent, available to me, was available to that tribunal
To sum up, recognizing that, under Chromalloy Ameri-
can Corp, supra, an employer stating that an employee
on strike has been permanently replaced does not create
a discharge, here, as in Chromalloy American Corp and
Mars Sales & Equipment Co, supra, Respondent went
further The Mlaker conversation at the shopping mall
before Christmas clearly evinces that Respondent had
discharged employees on the preceeding October 2,
1987
At bottom, what occurred in this case was that Plant
Manager Pajunen (and later, Production Manager
Mlaker) were using the legalistic term "permanent re-
placement" (see Chromalloy American Corp on this
point), instead of direct words like "discharged" or
"fired," as some sort of magic talisman, the use of which,
they apparently thought, would protect them from the
workings of the National Labor Relations Act While the
Act forbids the discharge of economic strikers, it does
not forbid "permanent replacement" Magic words, how-
ever, are no defense when the intent, as here, rather
clearly shows that Respondent's desire was to discharge
the strikers in retaliation for their engaging in lawful
union activity "Magic words," as the Board has consist-
ently found, cannot be used to obscure motive and
intent Lustrelon, Inc , 289 NLRB 378 (1988), Bosk Paint
& Sandblast Co, 270 NLRB 514 (1984)
I therefore conclude, as alleged, that Respondent on
October 2, 1987, in violation of Section 8(a)(3) and (1) of
the Act, discharged the seven striking pickets
D The Tainted Withdrawal of Recognition on
October 6, 1987
The complaint alleges that on October 6, 1987, Re-
spondent unlawfully withdrew recognition The evidence
shows that on that date, Respondent's attorney, Harding,
notified the Union, on the basis of the employee-signed
requests of withdrawal from the Union, that Respondent
was withdrawing recognition The evidence further
shows that on or about December 30, 1987, employee
Kathryn Extrum, filed a decertification petition in Case
18-RC-1679 submitting copies of the employee with-
drawal requests (G C Exhs 4(a)-4(z)) as support for the
decertification petition
It is unnecessary here to reach or decide the some-
times delicate question whether Respondent's week of
October 5 and December activities (in at least one in-
stance of Ruth Gustafson personally soliciting an em-
ployee to withdraw from the Union and otherwise pro-
viding photostatmg and secretarial help in the duplica-
tion and notarization of the withdrawal requests and the
use of Respondent's equipment in the typing of the de-
certification petition) unlawfully promoted the employee
withdrawals from the Union and the decertification peti-
tion or whether Respondent was merely exercising its
right of free speech Texaco, Inc v NLRB, 722 F 2d
1226 (5th Or 1984) For, in the instant case, having
found that on October 2, 1987, Respondent, violating
Section 8(a)(1), unlawfully threatened seven lawfully
striking employees, and at least three other employees,
with false, retaliatory threats of "permanent replace-
ment" if they failed to cease picketing or, in any case, if
they failed to report for work, and then discharged all
seven of the picketing economic strikers, thereby violat-
ing Section 8(a)(3) and (1) of the Act, the October 6,
1987 withdrawal of recognition was tainted as was the
subsequent December 30 decertification petition While,
in the instant case, Respondent's October 6 withdrawal
of recognition was based on 23 of the 26 employee nota-
rized statements of withdrawal of support from the
Union, those withdrawals were tainted by Respondent's
immediately prior unfair labor practices and brings the
case within the Board's rules in Hearst Corp, 281 NLRB
764 (1986), and Wallkill Valley General Hospital, 288
NLRB 103 (1988) As stated in Wallkill Valley General
Hospital
In Hearst Corp, 281 NLRB [764] (Sept 30, 1986),
the Board restated its position that a decertfication
petition will be valid only if, prior to an employer's
reliance on the petition, it is not engaged in conduct
"designed to undermine employees' support for, or
cause their disaffection with, the Union" If an em-
ployer has engaged in such conduct, the decertifiba-
lion petition will be found to have been tainted by
the unfair labor practices
As above noted, Respondent's October 6 withdrawal
of recognition was based on 23 employee notarized with
drawals from the Union These withdrawals came about
only 3 or 4 days after the unlawful threat of "permanent
replacement" made to strikers and nonstrikers, and the
immediate discharge of all the economic strikers, violat-
ing Section 8(a)(3) of the Act I find and conclude that
Respondent's October 2 threats, in violation of Section
8(a)(1) and its violation of Section 8(a)(3) on the same
day in the mass discharge of the strikers were both "de-
signed to undermine emplayees' support for or cause
their disaffection with, the Union," Hearst Corp, supra
This Respondent conduct affected both the employees'
withdrawals from the Union and the December decertifi-
cation petition In this regard the speed of mass employ-
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ee disaffection from the Union (October 6) following the
unfair labor prctices (October 2) must be seen as a direct
cause thereof As in Tenneco, Inc , 288 NLRB 888 (1988),
here, the very speed of the employee disaffection follow-
ing the October 2 threat of "permanent replacement" to
at least 10 of 38 employees is persuasive evidence that
the employees, commencing October 6, were unlawfully
coerced into signing the notarized withdrawals of sup-
port from the Union In any event, any uncertainty as to
causation must be resolved against Respondent which en-
gaged in the misconduct and which has the affirmative
obligation to establish a good-faith doubt of the Union's
majority status before withdrawal of recognition An em-
ployer who engages in misconduct against lawful em-
ployee union support must be held responsible for the
foreseeable consequences of its conduct Tenneco, Inc ,
supra
The rules, generally stated in Hotel & Motel Employees
Local 19 v NLRB, 785 F 2d 796 (9th Cir 1986), show
that once a Union is recognized, it enjoys a presumption
of continued majonty status which is rebuttable An em-
ployer may rebut the presumption of continued majority
status if it shows by clear, cogent and convincing evi-
dence that the Union was in the minority or that the em-
ployer had a good-faith reasonable doubt of majority
status Brooks v NLRB, 348 U S 96, 104 (1954) The rea-
sonable doubt must be asserted in good faith and may
not be raised in the context of any employer activities
aimed at causing disaffection with the Union NLRB v
Carilli, 648 F 2d 1206 (9th Cir 1981), Clear Pine Molding
v NLRB, 632 F 2d 721, 730 (9th Cir 1980), cert denied
451 U S 984 (1981) Where the General Counsel, as
here, presents evidence that the Union's decline in sup-
port was attributable to the employer's misconduct, the
employer's claim of good-faith reasonable doubt fails
NLRB v Sacramento Clinical Laboratory, 623 F 2d 110
(9th Cir 1980), Dalewood Rehabilitation Hospital v
NLRB, 566 F 2d 77, 80 (9th Cir 1977) Thus, a good-
faith doubt defense to a refusal-to-bargain allegation re-
quires the employer to present clear, cogent, and covinc-
ing evidence both of (1) a reasonable good-faith doubt of
majority status (2) in a context free of employer activities
aimed at causing disaffection Hotel & Motel Employees
Local 19 v NLRB, 785 F 2d 796 (9th Cir 1986)
Where, as here, Respondent unlawfully and falsely
warns 10 employees, including 3 nonstrikers, of dis-
charge if they do not report for work and then unlawful-
ly discharges 7 of 38 unit employees on the first day of
the economic strike, it is highly unlikely that, 4 days
later, the remaining employees executed their withdraw-
als of support from the Union as a matter of their own
free choice In this regard, the dissemination of the news
of the October 2 unfair labor practices must be inferred
to have spread throughout the unit by October when the
withdrawals started Bakers of Paris, Inc , 288 NLRB 991
(1988)
E The Alleged Unfair Labor Practice Strike
It seems to me unncessary to pass on the question of
whether and if the economic strike originating on Octo-
ber 2, 1987, was converted into or prolonged by the Re-
spondent's unfair labor practices The reason is that the
remedy afforded to the seven affected employees is the
equivalent to or surpasses any remedy which might be
determined with a finding of an unfair labor practice
strike Thus, although there would appear to be certain
hypothetical situations in which a finding of an unfair
labor practice strike would be pertinent, I conclude that
it is not in this case since the remedies here afforded to
the parties are at least the equivalent thereof and a find-
ing of an unfair labor practice strike based upon theoreti-
cal considerations should await the happenings of those
considerations rather than be made unnecessarily herein
In any event, however, were that finding necessary, I
would find that the economic strike of October 2 was
converted to an unfair labor practice strike no later than
on October 6, 1987, when, in response to Respondent's
unlawful threat of "permanent replacement," 23 employ-
ees withdrew their support for the Union and Respond-
ent unlawfully withdrew recognition
While I have found, above, that displays of employee
disaffection from the Union were based, in substantial
part, on Respondent's unlawful conduct of October 2,
that does not mean that the object of the October 2 eco-
nomic strike was shown to have changed on that date
For instance there was no overt manifestation of a pro-
test of unfair labor practices until the opening of the in-
stant hearing when the picket signs were changed to pro-
test unfair labor practices See Burkart Foam, Inc , 283
NLRB 351 (1987)
An employer's unfair labor practices convert an eco-
nomic strike into an unfair labor practice strike only
where there is substantial evidence that the unfair labor
practices prolong the strike Burkart Foam, supra, citing
Soule Glass & Glazing Co v NLRB, 652 F 2d 1055,
1079-1080 (1st Cir 1981) (other citations omitted)
Here, following unlawful threat of discharge, the re-
sulting employee withdrawal of union support and Re-
spondent's withdrawal of recognition on October 6, per
se, prolong the strike because the withdrawal of recogni-
tion deprives the employees of their bargaining repre-
sentative and thereby precludes the possibility of reach-
ing agreement on a contract and impedes the settlement
of the erstwhile economic strike Rose Printing Co, 289
NLRB 252 (1988), and Sanderson Farms, 271 NLRB
1481 (1984) 9
CONCLUSIONS OF LAW
1 By discharging its employees Mary Suzick, Linda
Perry, Linda Carpenter, Ruth Johnson, Marjorie Rich-
ards, Roberta Hecimovich, and Betty Judnitsch because
they engaged in a lawful economic strike on October 2,
1987, Respondent thereby unlawfully discriminated
against employees engaged in a lawful union activity and
9 Quite independently of the unlawful taint of Respondent s October 2
unfair labor practices on the October 5 et seq employee notarized with-
drawals of union support, there is evidence that Supervisor Gustafson s
aid to Kathryn Extrum in executing the decertification petition, filed De
cember 30, 1987, taints that document Kathyn Extrum, with Gustafson s
knowledge, used Gustafson s office and typewriter, got Gustafson s
advice on describing the unit, had Gustafson duplicate the October nota-
rized employee withdrawals, and used Respondent envelopes to send the
document See Rose Printing Co, supra
' AMERICAN LINEN SUPPLY CO 147
engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act
2 By threatening its employees with discharge on Oc-
tober 2, 1987, because they engaged in, or refused to
cease engaging in, a lawful economic strike, Respondent
violated Section 8(a)(1) of the Act
3 At all material times, United Food and Commercial
Workers Union, Local 1116, has been the exclusive col-
lective-bargaining representative of the employees of the
Respondent in the following appropriate unit
All driver salesmen, maintenance men, maintenance
helpers, washmen, extractor-dry cleaners, rug wash-
ers, roof make-ups, general launderers, C R T em-
ployees and roof foremen employed at Respondent's
Hibbing, Minnesota facility, excluding office clerical
employees, all other employees, guards and supervi-
sors within the meaning of the Act
4 On October 6, 1987, by withdrawing recognition of
the Union as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the above Hib-
bing unit and, since that date, by failing and refusing to
recognize and bargain with the Union as the exclusive
bargaining representative of its employees in the above
unit, when Respondent did not then, or at any other ma-
terial time, have a good-faith doubt concerning the ma-
jority status of the Union in that unit, Respondent violat-
ed Section 8(a)(5) and (1) of the Act
5 By virtue of Respondent's conduct, including that
described in paragraphs 1, 2, and 4, above, Respondent
unlawfully caused employee disaffection from the Union
and assisted in the preparation and filing, on December
30, 1987, of the decertification petition in Case 18-RD-
1679, thus violating Section 8(a)(1) and (5) of the Act
6 The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act
THE REMEDY
Having found that Respondent has committed various
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative achon designed to effectuate the policies of
the Act in the manner customary in such cases,
Having found that Respondent unlawfully discharged
the above-named seven employees because they engaged
in, or refused to cease engaging in, a lawful economic
strike, I shall recommend that they be offered reinstate-
ment to their old jobs or, if those jobs no longer exist, to
substantially equivalent employment, discharging, if nec-
essary, any replacement, together with backpay, Abilities
& Goodwill, 241 NLRB 27 (1979), enf denied 612 F 2d 6
(1st Cir 1979), computed on a quarterly basis as de-
scribed in F W Woolworth Go, 90 NLRB 289 (1950),
with interest thereon to be computed in accordance with
New Horizons for the Retarded, 283 NLRB 1173 (1987)
I shall also recommend that Respondent be ordered to
forthwith recognize and bargain in good faith with the
Union and that the decertfication petition in Case 18-
RD-1679 be dismissed
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, American Linen Supply Co, Hib-
bing, Minnesota, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Discharging, or otherwise disciplining, any employ-
ee because that employee engages in a lawful economic
strike or in other activities evincing sympathy for, mem-
bership in, or activities on behalf of United Food and
Commercial Workers Union, Local No 1116, or any
other labor organization, or because any such employees
engage in concerted activities protected by Section 7 of
the Act
(b) Threatening any employee with discharge or other
discipline or retaliation because he or they engage in, or
refuse to cease engaging in, a lawful strike or other con-
certed activities protected by Section 7 of the Act
(c) Withdrawing recognition from the above-named
Union when,Respondent fails to have a good-faith doubt
that the Union is the statutory bargaining agent of its
employees in the following appropriate unit or refusing
to bargain collectively in good faith with the above-
named union in the following appropriate bargaining
unit
All driver salesmen, maintenance men, maintenance
helpers, washmen, extractor-dry cleaners, rug wash-
ers, roof make-up, general launderers, C R T em-
ployees and roof foremen employed at Respondent's
Hibbing, Minnesota facility, excluding office clerical
employees, all other employees, guards and supervi-
sors within the meaning of the Act
(d) Assisting and supporting employee withdrawals of
support from the Union or the filing of a petition to de-
certify the Union
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guarateed in Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer to Roberta Hecimovich, Betty Judnitsch,
Ruth Johnson, Marjorie Richards, Mary Suzick, Linda
Perry, and Linda Carpenter immediate and full remstat-
ment to their former jobs or, if such jobs no longer exist,
to subtantially equivalent positions, without prejudice to
their seniority or other rights and privileges, discharging
if necessary any replacements in said jobs, and make
each of them whole for any loss of earnings in the
manner set forth in the remedy section of this decision
(b) Rescind any and all communications to the Union
wherein Respondent withdrew recognition from the
10 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union as the collective-bargaining representative of the
employees in the above appropriate unit
(c) Forthwith notify the union in writing that Re-
spondent is willing to recognize and bargain collectively
in good faith with the Union as the exclusive representa-
tive of Respondent's employees in the above appropralte
unit with respect to wages, hours, and other terms and
conditions of employment and, if agreement is reached,
to sign a contract
(d) Remove from Respondent's personnel records of
the employees named in paragraph 2(a) hereof any and
all references to their being discharged or replaced and
notify each of them, in writing, that this has been done,
and that evidence thereof will not be used as a basis for
any future disciplinary action
(e) Preserve and, on request, make available to the
Board through its agents and for examination and copy-
ing, all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order
(f) Post at Hibbing, Minnesota place of business copies
of the attached notice marked "Appendix" Copies of
the notice, on forms provided by the Regional Director
for Region 18, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
IT IS FURTHER ORDERED that the decertification peti-
tion in Case 18-RD-1679 be dismissed
If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading 'Posted by Order of the Nation-
al Labor Relations Board" shall read 'Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT discharge, or otherwise discipline, any
employee because of said employees' sympathy for,
membership in, or activities on behalf of United Food
and Commercial Workers Union, Local No 1116 or any
other labor organization, or because any such employee
engages in concerted activities protected by by Section 7
of the Act
WE WILL NOT threaten any employee with dischargp
or other discipline or retaliation because he or they en-
gaged in, or refused to cease engaging in, a lawful strike
or other concerted activity protected by Section 7 of the
Act
WE WILL NOT withdraw recognition from the above-
named union when we fail to have a good-faith doubt
that the Union is the statutory bargaining agent of our
employees in in the following appropriate unit or refus-
ing to bargain collectively in good faith with the above-
named Union in the following appropnate bargaining
unit
All driver salesmen, maintenance men, maintenance
helpers, washmen, extractor-dry cleaners, rug wash-
ers, roof make-ups, general launderers, C R T em-
ployees and roof foremen employed at Respondent's
Hibbing, Minnesota facility, excluding office clerical
employees, all other employees, guards and supervi-
sors within the meaning of the Act
WE WILL NOT assist and support employee disaffection
from the union or the filing of any petition to decertify
the Union
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed in Section 7 of the Act
WE WILL offer to Roberta Hecimovich, Betty Jud-
mtsch, Ruth Johnson, Marjorie Richards, Mary Suzick,
Linda Perry, and Linda Carpenter immediate and full re-
instatement to their former jobs or, if such jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
discharging if necessary and replacements in said jobs,
and make each of them whole for any loss of earnings
WE WILL rescind any and all communications to the
Union wherein we withdrew recognition from the Union
as the collective-bargaining representative of the employ-
ees in the above appropriate unit
WE WILL forthwith notify the Union in writing that
we are willing to recognize and bargain collectively in
good faith with the Union as the exclusive representative
of Respondent's employees in the above appropriate unit
with respect to wages, hours, and other terms and condi-
tions of employment and sign a contract if agreement is
reached
WE WILL remove from Respondent's personnel
records of the employees named herein any and all refer-
ences to their being discharged or replaced and notify
each of them, in writing, that this has been done and that
evidence thereof will not be used as a basis for any
future disciplinary action
AMERICAN LINEN SUPPLY COMPANY