Avery Heights

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1301 (N.L.R.B. 2004)

AVERY HEIGHTS
343 NLRB No. 128
1301
Church Homes, Inc. d/b/a Avery Heights and New
England Health Care Employees Union, District
1199, AFL–CIO. Case 34–CA–9168
December 16, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
This case presents two main issues: (1) whether the
Respondent’s discharge of four economic strikers for
alleged picket line misconduct violated the Act; and (2)
whether the Respondent’s failure to reinstate perma-
nently replaced economic strikers violated the Act be-
cause the Respondent had an unlawful independent mo-
tive in hiring the permanent replacements.1 The judge
found violations in both instances. Having considered
the decision and the record in light of the exceptions and
briefs, the Board agrees with the judge only in part. A
majority of the panel finds that the Respondent violated
Section 8(a)(1) and (3) of the Act in discharging three of
the strikers.2 A different majority finds that the Respon-
dent lawfully discharged the fourth striker.3 A panel
majority further finds no showing that the Respondent
had an independent unlawful motive in hiring the perma-
nent replacements, and therefore the Respondent did not
violate the Act by failing to reinstate all strikers on their
unconditional request to return to work.4 Accordingly,
the Board has decided to affirm the judge’s rulings, find-
ings,5 and conclusions only to the extent consistent with
this Decision and Order.

1 On November 1, 2001, Administrative Law Judge Michael A.
Marcionese issued the attached decision. The Respondent filed excep-
tions, a supporting brief, and an answering brief; and the General
Counsel filed limited cross-exceptions, a supporting brief, and an an-
swering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
No exceptions were filed to the judge’s dismissal of an 8(a)(5) alle-
gation that the Respondent misrepresented to the Union its intentions
regarding the hiring of permanent replacements.
2 Members Schaumber and Walsh. (Chairman Battista dissents.)
3 Chairman Battista and Member Schaumber. (Member Walsh dis-
sents.)
4 Chairman Battista and Member Schaumber. (Member Walsh dis-
sents.)
5 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
Background
Located in Hartford, Connecticut, Respondent Avery
Heights provides nursing home care, assisted living resi-
dences, independent living units, and adult day care.
New England Health Care Employees Union, District
1199, AFL–CIO (the Union) represents a bargaining unit
consisting of the Respondent’s approximately 180–185
service and maintenance employees. A collective-
bargaining agreement covering these unit employees
expired on October 31, 1999. On November 17, 1999,
during negotiations for a successor contract, the Union
launched an economic strike. The Respondent began
hiring permanent replacements on or about December 15,
1999. By January 20, 2000, the date that the Respondent
concedes the Union made an unconditional request for
strikers to return to work, the Respondent had hired
about 130 permanent replacements. During the recall of
striking employees, the Respondent discharged four em-
ployees—Opal Clayton, Patricia Hurdle, Georgia Stew-
art, and Pauline Taylor—for alleged picket line miscon-
duct.
Alleged Violations
I. THE DISCHARGES OF OPAL CLAYTON, PATRICIA HURDLE,
AND GEORGIA STEWART6
A. Facts
Clayton, Hurdle, and Stewart worked for the Respon-
dent as certified nursing assistants (CNAs). Each par-
ticipated in the strike, serving as a picket captain. During
the strike, the Respondent’s administrator, Miriam
Parker, heard from a nurse that a patient’s son had had
some sort of encounter with strikers on the picket line.
When Parker saw the son, Alan Richards, she inquired
about what happened. Richards reported that, during the
first week of the strike, while he was in his car waiting in
line to exit the facility, Clayton, Hurdle, and Stewart saw
him, faced him, raised their hands, and said, “Help me,
help me, help me” in imitation of his mother. Richards’
mother is known to utter the phrase “help me, help me,
help me” repeatedly and uncontrollably. Parker had
Richards write out a statement, which was neither dated
nor signed.
Following the Union’s unconditional offer to return to
work, Hurdle and Stewart were recalled and reported to
work on January 25, 2000. Each was told, however, not
to begin work, but instead to report to Parker and the
Respondent’s director of nursing, Barbara Brigandi.
Parker and Brigandi met with Stewart first, telling Stew-
art that Richards had accused her of mimicking his
mother on the picket line. No other information was
provided. Stewart denied the charge, and she was sent
home pending investigation. Parker and Brigandi then
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1302
met with Hurdle. She was told that a family member
complained about a gesture she had made on the picket
line. On request, she was told that it was Richards who
complained. No other details were provided. Hurdle
denied the charge, and she was sent home pending inves-
tigation. The Respondent conducted no further investi-
gation. On January 26, 2000, the Respondent sent termi-
nation letters to Hurdle and Stewart that outlined their
alleged misconduct in general terms. Hurdle and Stewart
learned the specifics of the allegation on February 17,
2000, at an unemployment office hearing.
Clayton had not yet been recalled by the time of the
February 17 unemployment hearing. Clayton was identi-
fied at the unemployment hearing as a participant in the
alleged misconduct, and she received a termination letter
dated February 22, 2000. The Respondent did not dis-
cuss the allegation with Clayton prior to discharging her.
At the hearing, Richards testified that he saw Clayton,
Hurdle, and Stewart mimicking his mother. The three
CNAs all denied under oath that they did so. Although
not doubting that Richards believed he saw the three
CNAs engaging in the alleged conduct, the judge never-
theless credited the CNAs’ denials. The judge found,
therefore, that Clayton, Hurdle, and Stewart did not in
fact engage in the alleged misconduct.
B. Analysis
An employer may lawfully discharge a striker whose
misconduct, under all the circumstances, would reasona-
bly tend to coerce or intimidate employees in the exercise
of rights protected under the Act. Clear Pine Mouldings,
268 NLRB 1044, 1046 (1984), enfd. 765 F.2d 148 (9th
Cir. 1985), cert. denied 474 U.S. 1105 (1986). An
analogous standard governs where, as here, the miscon-
duct is directed against persons who do not enjoy the
protection of Section 7 of the Act. Id. at 1046 fn. 14. In
cases presenting this issue, the General Counsel has the
overall burden of proving discrimination, but the burden
of going forward with the evidence shifts. Initially, the
General Counsel must show that the employee in ques-
tion was a striker and the employer took action against
the employee for conduct related to the strike. If the
General Counsel makes this showing, the burden shifts to
the employer to show that it honestly believed the em-
ployee engaged in the conduct for which he or she was
discharged. If the employer does so, the burden shifts
back to the General Counsel to establish that the em-
ployee did not in fact engage in the alleged misconduct.
Detroit Newspapers, 340 NLRB 1019, 1024 (2003);
Siemens Energy & Automation, Inc., 328 NLRB 1175
(1999). Even if the misconduct did in fact occur, the Act
will still have been violated if the conduct at issue was
not sufficiently egregious under Clear Pine Mouldings,
supra, to lose the protection of the Act.
In this case, it is unnecessary to traverse each step of
the analysis. Based on credibility determinations, which
we have adopted, the judge found that Clayton, Hurdle,
and Stewart, who were all engaged in the protected activ-
ity of striking, did not mimic Richards’ mother. Thus,
regardless of whether it honestly believed to the contrary,
the Respondent violated the Act by discharging Clayton,
Hurdle, and Stewart for an act they did not, in fact,
commit.7
Our dissenting colleague rejects the judge’s decision to
credit Clayton, Hurdle, and Stewart. Stating that the
judge based his credibility finding on the employees’
employment history, our colleague claims that the em-
ployees’ long record of no prior misconduct is, “at best,
only marginally relevant.” We disagree. The judge re-
lied on a number of factors in making his credibility de-
termination, “such as” the three employees’ length of
service and employment records, and the presence of
guards with video cameras. As to the judge’s reference
to employment history, the fact that persons act well in
one context might not guarantee their good conduct in
another, but surely it is more than marginally probative
of how they would behave. As to the video cameras near
the picket line, it is undisputed fact that no videotaped
evidence of the alleged incident exists. In addition, at the
outset of his decision, the judge stated that his findings
were also based on his “observation of the demeanor of
the witnesses.”8
Further, our dissenting colleague asserts that Richards
“had nothing against” the alleged discriminatees and was
“simply appalled by the[ir] conduct.” In so stating, our
colleague suggests the judge discredited Richards. But
the judge did not discredit Richards; rather, he found that
Richards was sincere in his belief of what happened, but
mistaken. The record supports this finding. In addition
to the three employees’ credited denials, the record re-
veals that at the time of the alleged incident, Richards

7 In finding a violation of the Act for the discharges of Clayton,
Hurdle, and Stewart, the judge additionally relied on his findings that
the Respondent lacked an honest belief that these three had mimicked
Richards’ mother, and that even if the alleged incident had occurred, it
was not sufficiently egregious to deprive the three CNAs of the Act’s
protection. Having found that the Respondent violated the Act because
the alleged incident did not in fact occur, we find it unnecessary to pass
on these additional findings. Thus, the Chairman is incorrect in his
dissent, in indicating that the Respondent had a good-faith belief that
the employees engaged in the misconduct, that the majority does “not
argue to the contrary.” Rather, we do not pass on that issue.
8 In adopting the judge’s decision to credit the testimony of Clayton,
Hurdle, and Stewart, Member Schaumber does not rely on the judge’s
blanket statement at the outset of the decision that his findings were
based on his “observation of the demeanor of the witnesses.”
AVERY HEIGHTS 1303
was 60 feet away from the picketers, in a car with the
windows rolled up. In addition, there were other factors
that called into question the reliability of his testimony.
Richards insisted the incident lasted 30 seconds despite
the 3 seconds it took him to utter the words “help me,
help me, help me” in his testimony; Richards incorrectly
claimed no one else was talking or making noise on the
picket line at the time of the alleged incident; and al-
though he crossed the picket line multiple times a day,
Richards said he never heard cheering or chanting.9 In
sum, then, we see no reason to second-guess the judge’s
credibility-based findings concerning this alleged inci-
dent.
II. THE DISCHARGE OF PAULINE TAYLOR10
A. Facts
Taylor worked as a CNA for the Respondent. The Re-
spondent had discharged Taylor in 1998, but was obli-
gated, pursuant to an arbitration award, to reinstate her
without backpay in August 1999. Shortly before her
reinstatement, the Respondent’s chief executive officer,
Norman Harper, told the Union’s president that he never
wanted to take Taylor back.
Taylor joined the strike at its inception. During the
strike, Parker received a complaint about Taylor from
Kathy Falcon, the daughter of an 82-year-old resident of
the Respondent’s nursing home. Falcon provided Parker
a written statement, which alleged that on December 4,
1999, at approximately 9:15 p.m., as Falcon was stopped
in her vehicle near the picket line with her window half-
way down, Falcon heard Taylor screaming something at
her. According to Falcon’s signed statement, Taylor’s
“exact words were—’there’s that bitch Horan’s daughter.
That bitch—that piece of trash! She’s a little piece of
trash and so is her mother.’” (Emphasis in original.)
Prior to this incident, Falcon had testified for the Re-
spondent against a friend of Taylor at an arbitration hear-
ing. On February 22, 2000, before Taylor was recalled
to work, the Respondent sent her a termination letter for
cursing and insulting a resident and her family member.

9 Further, while we adopt the judge’s finding that Richards was sin-
cere in his belief but mistaken, the record does not support our col-
league’s assertion that Richards “had nothing against” the alleged dis-
criminatees. He once complained to the Respondent about the alleged
discriminatees’ work performance; the strike concerned him because it
disrupted his mother’s care; he occasionally drove his mother’s per-
sonal caregiver, who also worked for the Respondent, into the facility,
and he thought it was unfair of strikers to call her a scab as he drove by;
and Richards said to a picketer, after the end of the strike, “It’ll be 10
years before you get anything out of this.”
10 Member Walsh does not join in this section of the decision.
B. Analysis
Applying the burden-shifting analysis summarized
above, the judge found it undisputed that Taylor was
terminated for strike-related misconduct. Thus, the bur-
den shifted to the Respondent to show it honestly be-
lieved that Taylor had engaged in that misconduct. The
judge found that the Respondent failed to sustain this
burden. In so finding, the judge emphasized that the dis-
charge decision was based on Falcon’s statement alone,
without the Respondent’s having conducted any further
investigation. In this connection, the judge referenced
his previous discussion of the other three CNA dis-
charges, in which he observed that the Respondent’s pre-
strike practice had been to investigate allegations of mis-
conduct before taking disciplinary action. The judge also
relied on the fact that the Respondent gave Taylor no
opportunity to respond to Falcon’s accusation. Although
the judge found, based on credited testimony, that Taylor
probably engaged in the alleged conduct, he concluded
that the Respondent did not meet its burden of showing it
acted in good faith when it discharged Taylor. Rather, he
concluded that the Respondent seized on Falcon’s report
to rid itself of a union-activist employee it had previously
tried to discharge and never wanted to take back.
The judge also found that, even if the Respondent hon-
estly believed that Taylor had done what Falcon said,
such conduct was not egregious enough to warrant the
denial of reinstatement. To be sufficiently egregious
under the objective standard of Clear Pine Mouldings,
supra, strike-related misconduct must have a reasonable
tendency, under all the surrounding circumstances, to
coerce or intimidate. The judge held that, under Board
precedent, verbal assaults like Taylor’s do not reasonably
tend to coerce or intimidate unless they are accompanied
by overt or indirect physical threats or otherwise make a
physical confrontation reasonably likely. Although he
criticized Taylor’s outburst as “profane, abusive and un-
professional,” the judge found there was no evidence of
any words or actions that “could reasonably be deemed
threatening or likely to result in a physical confronta-
tion.” Accordingly, the judge found that the Respondent
violated Section 8(a)(3) when it discharged Taylor for
her picket line misconduct.
Contrary to the judge, we find that the Respondent did
have an honest belief that Taylor shouted the words at-
tributed to her by Falcon (as she in fact did), and that
Taylor’s misconduct was egregious enough to result in
the loss of her reinstatement rights.
1. The Respondent’s honest belief
Board precedent establishes a relatively low threshold
for an employer to show it honestly believed that a strik-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1304
ing employee engaged in misconduct. Although the em-
ployer must do more than merely assert an honest belief,
some specific record evidence linking particular employ-
ees to particular allegations of misconduct will suffice.
General Telephone Co. of Michigan, 251 NLRB 737,
739 (1980). An employer’s honest belief may be based
on hearsay sources, including the reports of nonstriking
employees, supervisors, security guards, investigators,
police, and others. See Detroit Newspapers, supra, 340
NLRB 1019, 1025. Moreover, an employer need not
interview the accused striking employee before taking
disciplinary action. See Giddings & Lewis, Inc., 240
NLRB 441, 448 (1979).
The Respondent’s showing meets the foregoing stan-
dard. Falcon’s signed statement linked Taylor to a par-
ticular allegation of misconduct. Moreover, the report
was specific and circumstantially detailed, and Falcon’s
prior testimony against Taylor’s friend would furnish a
motive for the conduct Falcon reported. Contrary to the
judge, the Respondent was not obliged to give Taylor an
opportunity to respond before taking disciplinary action.
In finding the violation, the judge relied in part on the
fact that the Respondent did not follow its past practice
of investigating allegations of misconduct prior to mak-
ing disciplinary decisions. That past practice, however,
is irrelevant to the applicable legal analysis. Under Gen-
eral Telephone, the employer need only show “some
specificity in the record, linking particular employees to
particular allegations of misconduct.” 251 NLRB at 739.
The purpose of this requirement is simply to afford the
General Counsel a fair opportunity to meet his ultimate
burden of proving that the employee did not in fact en-
gage in the alleged misconduct. That is, if the General
Counsel were without knowledge as to the misconduct
that the respondent is relying on and as to the identity of
employees who allegedly engaged in it, the General
Counsel’s task would be impossible. As the Board ex-
plained in General Telephone, “[i]t is not the General
Counsel’s responsibility to ferret out what alleged mis-
conduct Respondent relied on in disciplining each em-
ployee.” Id. Here, as noted above, Falcon’s statement
contained more than enough detail to enable the General
Counsel to proceed and try to prove that Taylor did not,
in fact, engage in the misconduct of which she was ac-
cused. The dissent requires more than is necessary. The
dissent, in effect, requires the Respondent to prove that
Taylor committed the alleged misconduct. This is far
more than “some specificity” that is required under Gen-
eral Telephone to establish the Respondent’s honest be-
lief. Further, it is not for the Board to say that a better
investigation would have uncovered more. It is enough
that the Respondent shows “some specificity” for its be-
lief.11
Our colleague also confuses the nature of the General
Counsel’s case. The General Counsel is not alleging a
discriminatorily motivated 8(a)(3) discharge.12 Rather,
the General Counsel is alleging that the Respondent did
not have a good-faith belief that Taylor engaged in mis-
conduct, and, even if Respondent had such a belief, Tay-
lor was innocent of the misconduct. See Siemens Energy
& Automation, Inc., 328 NLRB 1175 (1999) (Wright
Line, 251 NLRB 1083 (1980), analysis inappropriate for
striker misconduct discharge). For the reasons indicated
herein, we reject both contentions.
In further support of the Respondent’s good-faith be-
lief that Taylor had engaged in the alleged conduct, we
note that the Respondent discharged Taylor in 1998 for
alleged patient abuse. Given the Respondent’s belief that
Taylor had committed patient abuse, it was all the more
likely that the Respondent would honestly believe an
impartial, highly specific allegation that Taylor had again
engaged in abusive behavior.
For all of the foregoing reasons, we find that the Re-
spondent had an honest belief that Taylor had engaged in
the conduct for which she was discharged.13
2. The egregiousness of the conduct
Also contrary to the judge, we find that Taylor’s mis-
conduct was egregious enough to result in the loss of her
Section 7 reinstatement rights. Specifically, we disagree
with the judge’s finding that Taylor’s comments could
not reasonably be deemed threatening or likely to result
in a physical confrontation. Taylor referred to Falcon’s
mother, Horan, as a “bitch” and a “piece of trash.” At
the time, Horan was a vulnerable 82-year-old resident of
a nursing home. Given Taylor’s choice of words and her
decision to yell them at Falcon in a public setting, it is
apparent that Taylor harbored feelings of hostility to-
ward. Horan and considered her undeserving of proper
treatment. In these circumstances, and contrary to our
dissenting colleague, we find that Taylor’s statement
could reasonably be deemed an implied threat that Taylor
would mistreat Horan upon Taylor’s return to work, pos-

11 Our colleague suggests that the Respondent purposely chose to
forego further inquiry in order to avoid finding any facts to the con-
trary. If there were evidence of such a motive, that could show bad
faith. However, there is no such evidence.
12 Thus, as our colleague acknowledges, “it is undisputed that the
Respondent discharged Taylor for conduct related to the strike.”
13 Although our dissenting colleague acknowledges the low burden
for an employer in establishing its honest belief that a striker engaged
in misconduct, he nevertheless appears to require the Respondent to
have undertaken an investigation thorough enough to establish the
misconduct as a certainty. Board law is clear that the Respondent has
no such duty. See, e.g., Detroit Newspapers, supra at 1024.
AVERY HEIGHTS 1305
sibly in a position as Horan’s caregiver. Thus, we find
that Taylor’s comments would reasonably tend to coerce
or intimidate others under Clear Pine Mouldings, supra,
and therefore were egregious enough to justify the loss of
her reinstatement rights.14
For all of the above reasons, we find that the Respon-
dent did not violate Section 8(a)(3) by discharging Tay-
lor for picket line misconduct.
III. THE HIRING OF PERMANENT REPLACEMENTS15
A. Facts
The strike began on November 17, 1999. Initially, the
Respondent relied on nonstriking employees, managers,
temporary employees, and volunteers to fill in for the
strikers. As it admitted in its answer, however, the Re-
spondent commenced hiring permanent replacements on
December 15. The Respondent also offered permanent
jobs to temporary workers it had taken on since the be-
ginning of the strike.
The Respondent admits that it decided not to inform
the Union of its decision to permanently replace the
striking employees. Scott Cohen, the owner of one of the
agencies supplying temporary employees to the Respon-
dent, testified that the Respondent’s director of opera-
tions told him that its plans regarding permanent re-
placements were to be kept “hush-hush” and that it
needed to get as many bodies hired as it could before the
Union found out. Based on blind ads for jobs similar to
those held by the strikers, the Union became suspicious
that the Respondent was planning to hire permanent re-
placements. Around the end of December 1999, the Un-
ion received a report from someone who claimed that she
was offered a permanent job with the Respondent. The
Union then arranged for a meeting with the Respondent
and a Federal mediator on January 3, 2000. At the Janu-
ary 3 meeting, the Respondent admitted that it already
had hired “over 100” permanent replacements.
On December 31, 1999, Harper sent a memorandum to
the Respondent’s board of directors. The memorandum
noted that “as a well-executed surprise event the day
before Christmas, we began to permanently replace strik-
ing workers at Avery. . . . So far, we have hired 104 per-
manent replacements at Avery, replacing 60% of those
on strike. If [the Union] refuses to seriously negotiate in
good faith, we plan to add one or more permanent re-
placements each day. We have [the Union] in a real bind
at Avery.”

14 Further, even if the comment was not a threat of future mistreat-
ment of Horan’s mother, Chairman Battista finds that the conduct is
sufficiently egregious to warrant discipline. Simply stated, it is unac-
ceptable to have a caregiver in a nursing home refer to an elderly pa-
tient as a “bitch” and a “piece of trash.” No nursing home should be
compelled by the Government to retain such an employee.
B. Analysis
An employer violates Section 8(a)(3) by failing to im-
mediately reinstate striking employees on their uncondi-
tional offer to return to work, unless the employer estab-
lishes a legitimate and substantial business justification
for failing to do so. NLRB v. Fleetwood Trailer Co., 389
U.S. 375, 378 (1967); Capehorn Industry, 336 NLRB
364, 365 (2001). The employer establishes a legitimate
and substantial business justification where it shows that
the positions claimed by the strikers are filled by perma-
nent replacements. Fleetwood Trailer, supra; see NLRB
v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345–
346 (1938). However, a violation will still lie if it is
shown that, in hiring the permanent replacements, the
employer was motivated by “an independent unlawful
purpose.” Hot Shoppes, Inc., 146 NLRB 802, 805
(1964). Apart from such a purpose, the employer’s mo-
tive for hiring permanent replacements is immaterial. Id.
The theory of the General Counsel’s case was that in
hiring permanent replacements, the Respondent had an
independent unlawful purpose: punishing the strikers
and breaking the Union’s solidarity by replacing a major-
ity of the unit employees. The judge found that the Gen-
eral Counsel proved an independent unlawful motive for
the following reasons.
First, the Respondent concealed its hiring plans from
the Union. “An employer who hires permanent replace-
ments in secret,” the judge wrote, “without affording the
strikers an opportunity to abandon the strike and return to
their jobs while still vacant, may be motivated not by
legitimate business considerations, but by a desire to
punish the strikers by effectively terminating them.” The
Respondent claimed that it was concerned about union
harassment and misconduct if the Union were to become
aware of the hiring scheme, but the judge rejected that
claim as unsupported by the record.
Second, the judge found that Harper’s December 31,
1999 memorandum demonstrated the Respondent’s in-
tent to use replacements to break the solidarity of
Avery’s union employees by replacing a majority of the
unit before the Union found out, thus putting pressure on
the Union to acquiesce in the Respondent’s bargaining
position. The judge also viewed Harper’s memo in light
of Cohen’s testimony, which he credited, and which
showed that the Respondent was aiming to replace a ma-
jority of the unit before the Union found out. Based on
the Respondent’s concealment, Harper’s memorandum,
and Cohen’s testimony, the judge found that the Respon-
dent had an independent unlawful motive for hiring per-
manent replacements, and that the unlawful motive out-
weighed the business justifications advanced by the Re-
spondent for its permanent replacement hires. Accord-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1306
ingly, the judge found that the Respondent violated Sec-
tion 8(a)(3) by failing to reinstate the striking employees
in response to the Union’s January 20, 2000 uncondi-
tional offer to return to work.
We disagree with the judge. It is important to properly
frame the issue in this case. The Respondent perma-
nently replaced the economic strikers. It is clear beyond
peradventure that an employer has a right to do so. See
NLRB v. Mackay Radio, 304 U.S. 333 (1938). The ra-
tionale for this result is that employers have a right to
“fight back” in the economic battle and the right to try to
continue operations during a strike. Our colleague seems
to recognize this, and seeks only to show that the Re-
spondent’s real motive here was to break the Union, as
distinguished from the motives of winning the economic
battle and continuing operations. In this regard, he posits
a Wright Line16 test as to motive. We conclude there was
no showing of an independent unlawful motive in this
case.
The judge’s finding of an independent unlawful motive
is based on three primary facts: the Respondent’s ac-
knowledged secrecy in hiring permanent replacements,
Cohen’s “hush-hush” testimony, and Harper’s December
31, 1999 memorandum. We do not find that these facts,
either separately or in any combination, establish an
unlawful motive in hiring permanent replacements.
Cohen’s testimony simply confirmed the Respondent’s
secrecy in hiring the permanent replacements, a fact that
the Respondent has openly acknowledged in this pro-
ceeding. Moreover, the Board has never held that an
employer is under a duty to disclose to a union its inten-
tion to hire permanent replacements. Our dissenting col-
league finds secrecy to be inimical to any lawful motives
an employer might have for choosing to hire replace-
ments. However, he does not dispute that Board prece-
dent imposes no obligation on an employer to inform a
union of its plan to hire permanent replacements. Rather,
citing Eads Transfer, 304 NLRB 711 (1991), he states
that the Respondent should have provided notice that it
was hiring permanent replacements because, in the situa-
tion of a bargaining lockout, the Board requires an em-
ployer to provide notice of the lockout. A lockout is for
the purpose of bringing pressure to bear on the employ-
ees and their union, so that they will yield to the em-
ployer’s bargaining position. Thus, it is essential that the
employer give the union notice of the lockout. By con-
trast, hiring strike replacements enhances the employer’s
position in two ways: (1) the employer can operate dur-
ing the strike and can thus “hold out” longer than the

16 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
strikers (who are not receiving an income); and (2) the
strikers will learn of their being replaced and will pres-
sure their union to accept the employer’s bargaining po-
sition. We agree that the second factor presupposes that
the employees are aware that permanent replacements
have been hired. The first factor is not dependent on
such knowledge. Thus, the Respondent need not disclose
the hiring of permanent replacements.
But even assuming that the notice requirement should
apply in the context of permanent replacements for strik-
ers, the Respondent complied with that requirement. As
explained in Eads Transfer and again in Ancor Con-
cepts,17 notice of a lockout must be given “before or in
immediate response to the strikers’ unconditional offers
to return to work.” 323 NLRB at 744 (citing Eads
Transfer, 304 NLRB at 713). The Respondent here did
exactly that—in immediate response to the strikers’ first
offer to return to work on January 5, the Respondent in-
formed some of them that they were permanently re-
placed.18 Indeed, the Respondent told the Union, even
before January 5, that it was permanently replacing the
strikers. On January 3, the Respondent gave this infor-
mation to both the Union and the FMCS. Apparently,
our dissenting colleague would require that this informa-
tion be disclosed still earlier, i.e., at the time of the deci-
sion to replace or at the time of the commencement of
hiring replacements. As noted above, we know of no
duty to disclose at all, much less a duty to disclose at a
particular time. Accordingly, these facts, and the record
in general, demonstrate merely that the Respondent used
the hiring of permanent replacements to gain economic
leverage over the Union in bargaining, and to continue
operations during the strike.
Our colleague insists that the failure to disclose the hir-
ing of replacements at the time of such hiring establishes
that the hiring was for an illicit motive. CEO Harper
testified about the fact that the Respondent did not tell
the Union about the permanent replacements. Harper
said that this nondisclosure was not for the purpose of
gaining economic leverage in bargaining. Our colleague
seizes on this point to argue that the secrecy was for the
purpose of undermining the Union’s status. However,
this is a non sequitur. A purpose of the hiring of re-
placements was to gain economic leverage in bargain-
ing.19 As stated above, there is no duty to disclose the

17 Ancor Concepts, Inc., 323 NLRB 742, 743–744 (1997).
18 As for others whose positions were still vacant, the Respondent re-
instated the strikers.
19 Contrary to the suggestion of our colleague, we are finding only
that a purpose of the hiring of replacements was to gain economic
leverage. We are not saying that the failure to disclose had that pur-
pose.
AVERY HEIGHTS 1307
use of this weapon. Nor is there an obligation to justify
such a nondisclosure. Thus, the nondisclosure did not
have an illicit motive.
Finally, the Respondent did tell the Union about the
hiring of replacements. It did so only 2 weeks after the
hiring began. Thus, at that point the disclosure itself had
the purpose of placing bargaining pressure on the Union.
The fact that there was a 2-week delay in such disclosure
does not establish an illicit motive.
In finding improper motive, the judge has missed an
important distinction. There is a sharp distinction be-
tween seeking to prevail over the Union and seeking to
oust the Union as bargaining representative. The former
is what the Respondent did here. Although a victory
over a union in an economic battle may cause employee
disaffection from the union, that does not take away the
employer’s right to seek to win the economic battle.
The evidence in this case, including Harper’s memo-
randum, simply does not establish some kind of a nefari-
ous scheme to punish striking employees by hiring per-
manent replacements. Contrary to the judge’s interpreta-
tion, Harper’s memorandum shows that the Respondent
wanted to gain an advantage in bargaining and nothing
more. The memorandum speaks of placing the Union “in
a real bind” at both of the facilities where it was negotiat-
ing with the Respondent.20 That bind was economic. As
the Respondent filled the unit with new employees with
fewer loyalties to the Union, the Respondent changed the
mathematics of both support for the strike and a future
contract ratification vote. This placed greater pressure on
the Union to reach agreement on terms more favorable to
the Respondent. By the same token, if the hiring of re-
placements persuaded some employees that further strik-
ing was unwise, that would inure to the bargaining bene-
fit of the employer.
The judge acknowledged this fact when he character-
ized the “surprise” to which Harper’s memo refers as “a
strategic move to break the solidarity of the union em-
ployees at Avery and put economic pressure on the lead-
ership at both Avery and [the other facility] to acquiesce
to the Respondent’s bargaining position.” The judge
found this to be a sinister, unlawful motive on the Re-
spondent’s part. We do not. Rather, the judge’s own
characterization of the Respondent’s goal clearly states

We think that it is obvious, and not “abstract” as our colleague as-
serts, that an employer (including the Respondent) gains an economic
advantage by being able to operate with replacements during a strike.
We do not contend that an employer (including the Respondent) neces-
sarily gains an economic advantage by not disclosing the hiring of
replacements.
20 The complaint allegations concern only the Respondent’s actions
at the Avery Heights facility.
the Respondent’s legitimate aim to obtain economic lev-
erage in bargaining.
Although Harper’s memorandum characterized the hir-
ing of permanent replacements as “a well-executed sur-
prise event,” that is no more than a restatement of the
Respondent’s acknowledged policy of secrecy surround-
ing the hires. Harper’s memorandum also lists several
“distinct advantages” of hiring permanent replacements.
Conspicuously absent from this list is any reference at all
to the strikers, much less a reference to a desire to punish
them. That is a telling omission. Thus, Harper’s charac-
terization of the hiring event merely restates the Respon-
dent’s desire to surprise the Union and thereby obtain an
economic advantage in the ongoing contract negotia-
tions.
Further, even assuming, as our dissenting colleague
would have it, that the Respondent’s motive was to break
the Union’s solidarity in the economic battle, such an
objective is not unlawful. The judge and the dissent lose
sight of the big picture here—the parties were engaged in
economic warfare. To win that battle, the Union de-
ployed its strike weapon in the midst of bargaining nego-
tiations, with the hope of securing agreement on its terms
for a new contract.
In essence, the Respondent had two options. It could
either capitulate to the Union’s demands, or it could em-
ploy economic weapons of its own. As the Supreme
Court observed in Machinists Lodge 76 v. Wisconsin
Employment Relations Commission, 427 U.S. 132, 152–
153 (1976), permanent replacement is an economic
weapon, and the Respondent’s choice to wield that
weapon to break the Union’s solidarity was entirely con-
sistent with the purpose of economic weaponry—to in-
flict punishing economic harm on the other party in order
to force that party to yield in the economic bargaining
dispute. See Central Illinois Public Service Co., 326
NLRB 928, 931–932 (1998).
In Central Illinois Public Service, the respondent util-
ized a lockout as its economic weapon to counter the
union’s “inside game” strategy, a newly devised eco-
nomic weapon in which employees, as an alternative to a
strike, remained on the job but engaged in work-to-rule
tactics and refused to work voluntary overtime.21 The
judge, like the judge and our dissenting colleague here,
found the employer’s action violated Section 8(a)(1) and
(3) because it was designed to “punish employees for
engaging in protected activity.” 329 NLRB at 929. This
conclusion was based on the judge’s view of the evi-
dence showing that the “lockout had one, and only one,

21 The Board assumed arguendo that the employees’ conduct was
protected.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1308
objective—to stop the Union’s inside game activities.”
Id. at 931. In reversing the judge, the Board found, as we
do here, that “even assuming as true that the sole objec-
tive of the lockout was to force the unions to cease their
inside game activities, such is not an impermissible busi-
ness objective.” Id. The Board explained that to hold
otherwise disregards the Supreme Court’s decision in
American Ship Building22 that a union’s right to strike in
support of its bargaining position “does not entail any
right to insist on one’s position free from economic dis-
advantage.” Id., quoting American Ship Building at
309.23
We recognize that the employer weapon in Central Il-
linois was a lockout and here it was permanent replace-
ment of strikers. However, in both cases, the weapon
was designed to win the economic battle.
In disregard of this precedent, the dissent contends, in
effect, that the Union’s protected right to employ its eco-
nomic strike weapon against the Respondent was
shielded from any adverse counteraction by the Respon-
dent. This is not the law. The Union’s strike weapon
was causing economic injury to the Respondent’s opera-
tions. Permanent replacement was the Respondent’s
economic counter-weapon, deployed with the lawful
intended effect of forcing the strikers and their Union to
yield.
Our dissenting colleague complains that the Respon-
dent only belatedly pled the “bargaining weapon” justifi-
cation for the hiring of replacements. However, that
complaint misses the point. As discussed above, it was
the General Counsel’s initial burden to prove unlawful
motive, not the Respondent’s burden to prove a business
justification, for hiring permanent replacements. Inas-
much as that burden was not met, the analysis need not
reach the Respondent’s business justification defense. In
any event, that defense is a meritorious one. As dis-
cussed above, the hiring of permanent replacements dur-
ing an economic strike has a legitimate business justifica-
tion under well-settled law. It is simply too late in the
law’s development to argue the contrary. The only ar-
gument available to the General Counsel rests on motive,
and that argument has not been supported.
In sum, although the Respondent’s actions had serious
consequences for the striking employees, there is nothing
unlawful in its motive of achieving its ultimate, lawful
goal of pressuring the Union into settling the contract
terms on a basis more agreeable to the Respondent. Ac-
cordingly, we find that the Respondent properly exer-
cised its right to hire permanent replacements for its

22 American Ship Building Co. v. NLRB, 380 U.S. 300 (1965).
23 The Board’s decision was enforced by the D.C. Circuit. See Elec-
trical Workers Local 702 v. NLRB, 215 F.3d 11 (2000).
striking employees and that it did not violate Section
8(a)(3) when it refused to reinstate the strikers upon their
January 20, 2000 unconditional request to return to work.
AMENDED REMEDY
As stated above, the judge found that the permanent
replacement of the strikers was unlawful. Accordingly,
the make-whole remedy he provided for discharged
strikers Clayton, Hurdle, and Stewart did not take into
account whether any of them had been permanently re-
placed. However, we have found, contrary to the judge,
that the permanent replacement of the strikers was law-
ful. Therefore, if any of the three employees, Clayton,
Hurdle, or Stewart, was permanently replaced before her
unlawful discharge, the judge’s remedy must be amended
to provide that backpay for that individual or those indi-
viduals shall commence on the date the Respondent was
obligated to recall her or them to work. Laidlaw Corp.,
171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir.
1969), cert. denied 397 U.S. 920 (1970).
Hurdle and Stewart were not permanently replaced.
Each received a letter dated January 21 instructing her to
report for work on January 25, which was the first date
that returning strikers were recalled following the Un-
ion’s January 20 offer to return to work. Although both
employees arrived at the Respondent’s facility on time
and dressed for work, they were not permitted to start
work. A few days later, they were unlawfully dis-
charged. Accordingly, their backpay will commence on
January 25.
Clayton, however, had been permanently replaced.
She received a letter from the Respondent notifying her
of that fact and informing her that her name had been
placed on a preferential rehire list. Clayton was unlaw-
fully discharged prior to being recalled. Accordingly,
her backpay will commence on the date that she would
have been recalled but for her unlawful discharge. That
date may be determined at the compliance stage of this
proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Church Homes, Inc. d/b/a Avery Heights,
Hartford, Connecticut, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting New England Health Care
Employees Union, District 1199, AFL–CIO, or any other
union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
AVERY HEIGHTS 1309
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Opal Clayton, Patricia Hurdle, and Georgia Stewart full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed. If no employment is
available for Clayton by virtue of her having been per-
manently replaced, she shall be placed on a preferential
hiring list based on seniority, or some other nondiscrimi-
natory basis, for employment as jobs become available.
(b) Make the above-named employees whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth
in the remedy section of this decision, as amended.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
the above-named employees, and within 3 days thereafter
notify those employees in writing that this has been done
and that the discharges will not be used against them in
any way.
(d) Preserve and, within 14 days of a request, or within
such additional time as the Regional Director may allow
for good cause shown, provide at a reasonable place des-
ignated by the Board or its agents, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Hartford, Connecticut facility copies of the attached
notice marked “Appendix.”24 Copies of the notice, on
forms provided by the Regional Director for Region 34,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice

24 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
to all current employees and former employees employed
by the Respondent at any time since January 26, 2000.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
CHAIRMAN BATTISTA, dissenting in part.
I disagree that the General Counsel has shown, by a
preponderance of the evidence, that employees Clayton,
Hurdle, and Stewart did not engage in picket line mis-
conduct. The misconduct was that the three employees
ridiculed the mother of Alan Richards.
First, I find that the Respondent had a good-faith belief
that the three employees engaged in the misconduct.
Indeed, my colleagues do not argue to the contrary. The
Respondent, through Dr. Parker, acted on the basis of
what Richards told her. The burden then shifted to the
General Counsel to prove that the employees had not
engaged in the misconduct.
Richards testified unequivocally that he saw and heard
the three employees ridicule his mother, an elderly and
frail patient at the Respondent’s nursing home. The three
employees denied the misconduct. The judge credited
that denial. In doing so, the judge did not rely upon their
particular testimonial demeanor.1
The three employees had an obvious interest in testify-
ing as they did. Their very jobs depended on that testi-
mony. By contrast, Richards was a disinterested witness.
He had nothing against these employees, and no reason
to help the Respondent in litigation. He was simply ap-
palled by the conduct concerning his mother.
My colleagues dispute my characterization of Mr.
Richards as a disinterested witness by noting that he was
opposed to the strike. I disagree. Although Richards
was upset about the strike, that sentiment was only be-
cause he was concerned that the strike would interfere
with his mother’s care. There is no suggestion that he
took sides as to the bargaining issues in dispute. Further,
his opposition to the strike, which involved 180 employ-
ees, does not explain why he would wish to single out the
3 strikers to accuse them of misconduct. Indeed, Rich-
ards was reluctant to accuse them; he did not seek out the
Respondent to report their misconduct.

1 The judge made a general statement, at the outset of his opinion,
that he relied upon “his observation of the demeanor of the witnesses.”
He gave no further explanation. Moreover, he made no specific refer-
ence to the demeanor of the witnesses as to the particular incident in-
volved herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1310
In crediting the three employees, the judge relied upon
their employment history, including the length of em-
ployment and the record of that employment. However,
the fact that the employees engaged in no prior miscon-
duct for a long period of time at work is, at best, only
marginally relevant to whether they engaged in miscon-
duct on a picket line in the midst of a bitter labor dispute.
In an effort to support the judge’s credibility finding,
my colleagues rely upon factors that the judge himself
did not rely upon. It is little wonder that the judge de-
clined to rely upon these factors for they do not support
his credibility resolution. First, the three strikers were
“yelling” their taunts from 60 feet away. It is not unrea-
sonable to say that this yelling could be heard from that
distance. Second, although the judge found that Rich-
ards’ car window (singular) was rolled up, he did not say
that the other windows were rolled up. Third, the fact
that the taunting words “help me, help me, help me” can
be uttered in 3 seconds does not mean that the entire in-
cident lasted only 3 seconds.
The judge relied upon the lack of videotape evidence.
However, videotape would not capture the verbal taunts
involved herein. Similarly, the guards were instructed to
videotape only “inappropriate incidents.” Of course, the
guards would not have recognized the cruelty of the taunt
“help me.” Only Richards would recognize that.
In sum, I do not believe that the judge’s finding of fact
is supportable. At most, the evidence is in equipoise.
Thus, there is not a preponderance of evidence support-
ing the General Counsel’s contention.
Finally, there can be little doubt that the misconduct
was sufficiently egregious to warrant discharge. Indeed,
it is difficult to think of any conduct more heinous than
that of nursing home employees who ridicule a cry for
help by an elderly and frail patient.
MEMBER WALSH, dissenting in part.
It is well established that the “employer alone is re-
sponsible for its conduct and it alone bears the burden of
explaining the motivation for its actions.” Inland Steel
Co., 257 NLRB 65, 68 (1981), enfd. mem. 681 F.2d 819
(7th Cir. 1982). Today, however, in reversing an admin-
istrative law judge and holding that the Respondent law-
fully refused to reinstate economic strikers, the majority
relies not on a justification the Respondent advanced, but
on one it explicitly disavowed. Compounding its error,
the majority conjures up a “justification” that amounts to
a blanket endorsement of an employer’s blatant use of its
raw economic power, not to maintain business operations
during a strike, but to erode the strikers’ support for the
Union. Accordingly, I must dissent from the majority’s
reversal of the judge’s well-reasoned finding that the
Respondent violated Section 8(a)(3) and (1) by failing to
reinstate the strikers upon their unconditional offer to
return to work. Before turning to that issue, I will first
address another of the majority’s errors: the reversal of
the judge’s finding that the Respondent violated Section
8(a)(3) and (1) by discharging Pauline Taylor.1
I. THE DISCHARGE OF PAULINE TAYLOR
A. Facts
Taylor worked as a CNA for the Respondent. She had
been a union delegate since 1992, had served as one of
the Union’s two chapter officers, and was a picket cap-
tain during both a strike in 1995 and the 1999 strike at
issue here. The Respondent discharged Taylor in 1998,
but was obligated, pursuant to an arbitration award, to
reinstate her without backpay in August 1999. Shortly
before her reinstatement, the Respondent’s chief execu-
tive officer, Norman Harper, told the Union’s president
that he never wanted to take Taylor back and that he did
not like her as a human being.
Taylor joined the 1999 strike at its inception. During
the strike, the Respondent’s administrator, Miriam
Parker, received a complaint about Taylor from a resi-
dent’s daughter, Kathy Falcon. Parker had Falcon pro-
vide a written statement, which alleged Taylor yelled at
Falcon as she was leaving the facility on December 4,
1999. Falcon wrote that Taylor’s “exact words were—
’there’s that bitch Horan’s daughter. That bitch—that
piece of trash! She’s a little piece of trash and so is her
mother.’” (Emphasis in original.) On February 22,
2000, before Taylor was recalled to work, the Respon-
dent sent her a termination letter for cursing and insulting
a resident and her family member.
B. Analysis
It is well settled that an employer may discharge a
striker whose misconduct, under all the circumstances,
may reasonably tend to coerce or intimidate employees
in the exercise of rights protected under the Act. Clear
Pine Mouldings, 268 NLRB 1044 (1984), enfd. 765 F.2d
148 (9th Cir. 1985), cert. denied 474 U.S. 1105 (1986).
The Board applies an analogous test in considering a
striker’s misconduct directed against persons who do not
enjoy the protection of Section 7 of the Act. Id. at 1046
fn. 14. If the General Counsel establishes that an em-
ployee was discharged for strike-related conduct, the
burden shifts to the Respondent to show it had an honest
belief that the striker engaged in the conduct for which
he or she was discharged. If the Respondent establishes
its honest belief, the burden shifts back to the General

1 I agree with Member Schaumber that the Respondent violated Sec.
8(a)(3) and (1) by discharging Opal Clayton, Patricia Hurdle, and
Georgia Stewart.
AVERY HEIGHTS 1311
Counsel to establish that the striker did not in fact engage
in the alleged misconduct. Siemens Energy &
Automation, Inc., 328 NLRB 1175 (1999). Even where
the employer has an honest belief that the employee en-
gaged in misconduct and the employee in fact did so,
verbal conduct will warrant discharge only if it reasona-
bly tends to coerce or intimidate employees in the exer-
cise of rights protected under the Act, or if it meets the
analogous test for misconduct directed against persons
who do not enjoy the Act’s protection. Clear Pine
Mouldings, supra at 1046 fn. 14.
It is undisputed that the Respondent discharged Taylor
for conduct related to the strike, and neither the General
Counsel nor the Union has excepted to the judge’s find-
ing that Taylor did, in fact, commit the alleged act. Ac-
cordingly, the lawfulness of the Respondent’s discipli-
nary action turns on whether it had an honest belief that
Taylor committed the act at the time it discharged her,
and whether Taylor’s comments were so egregious that
they warranted the loss of her reinstatement rights. For
the reasons discussed below, the judge correctly found
(1) that the Respondent was not acting honestly and in
good faith when it terminated Taylor, and (2) that even if
it was, Taylor’s conduct did not warrant discharge.
1. The Respondent’s honest belief
The Board has held that an employer’s honest belief
must be supported by record evidence linking the striker
to the alleged misconduct. General Telephone Co. of
Michigan, 251 NLRB 737, 739 (1980). Although the
employer is not necessarily obligated to interview the
accused striker, whether it had an honest belief is judged
on the basis of the evidence available to it when it took
the disciplinary action at issue. Detroit Newspapers, 340
NLRB 1019, 1025 (2003); Giddings & Lewis, Inc., 240
NLRB 441, 448 (1979). Although the Respondent’s
burden of proof on this matter is not heavy, an examina-
tion of the circumstances of this case demonstrates that it
ignored all potentially available evidence except for Fal-
con’s report. Thus, as the judge concluded, the Respon-
dent used Falcon’s report as an excuse to get rid of a
striking union activist who the Respondent’s chief execu-
tive officer identified approximately 6 months earlier as
someone he did not want to reemploy.
The Respondent discharged Taylor based on a single
report from one resident’s family member without inves-
tigating the allegation in any way. In Giddings & Lewis,
supra, although the disciplined striking employees were
not interviewed, the employer relied on oral and written
reports of supervisors, public records (including arrest
reports), interviews with witnesses and police officials,
and a film record of picket line misconduct. Under those
circumstances, the Board found it “not unreasonable” for
the employer to dispense with interviews of the strikers.
Id. at 448. Here, by contrast, the Respondent avoided
any inquiry whatsoever into the matter. The Respondent
did not ask the security guards it hired for the strike, or
anyone else, if they could corroborate Falcon’s allega-
tion. Neither did the Respondent attempt to check video-
tape footage shot by its security guards to see if the con-
frontation Falcon alleged had been captured by a camera
that was to be used when misconduct occurred. The Re-
spondent’s failure to even attempt to verify Falcon’s re-
port shows that it was not acting in good faith when it
decided to terminate Taylor.2
Furthermore, the Respondent’s handling of the Taylor
situation was notably different from its ordinary course
of business. Parker testified that, in contemplating disci-
pline for employee misconduct, she ordinarily conducts
an investigation and looks into all the details in order to
be fair to the accused employee. The Respondent’s nurs-
ing department policy and procedure manual requires a
thorough investigation of abuse. Further, Jon Webb, a
union delegate, testified that of the 40 suspensions and
9–10 terminations in which he has represented union
members, Taylor’s discharge was one of only two cases
that involved suspension or termination without the em-
ployee first being allowed to respond to the allegations of
misconduct. (Opal Clayton’s discharge was the other.)
Moreover, the Respondent’s handling of the discharges
of Hurdle and Stewart provides further insight into the
Respondent’s motivation in discharging Taylor. The
Respondent suspended both Hurdle and Stewart pending
investigation into the charges leveled at them. The Re-
spondent discharged them, however, without conducting
any further investigation. The Respondent not only
failed to perform a genuine investigation into the allega-
tions against Hurdle and Stewart, but it failed to follow
the procedure it said it would follow when it suspended
them. This failure supports the finding that the Respon-
dent acted out of a desire to rid itself of striking union
activists, including Taylor, rather than an honest belief
that the discharged employees had engaged in picket line
misconduct.
Contrary to my colleagues’ suggestion, I neither con-
fuse the nature of the General Counsel’s case nor require
the Respondent to prove that Taylor committed the al-
leged misconduct. I simply require the Respondent to
meet the standard of honest belief. The majority’s appli-
cation of that standard drains it of meaning. As applied
by the majority, General Telephone, supra, would stand

2 The “honest belief” requirement has been described as synonymous
with a “good-faith belief.” See Champ Corp., 291 NLRB 803, 803
(1988), enfd. 933 F.2d 688 (9th Cir. 1990), cert. denied 502 U.S. 957
(1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1312
for the proposition that as soon as an employer has a re-
port linking an employee to an allegation of misconduct,
it may forego its customary investigative practices in
order to avoid learning anything further, and then claim
honest belief. General Telephone does not, however,
compel such a position, nor should it be read in such a
way as to turn “honest belief” into an empty phrase. In
the circumstances presented here, the Respondent’s un-
willingness to make any inquiry that might contradict
Falcon’s statement belies any claim it might otherwise
have to an honest, good-faith belief in Falcon’s report.
The fact that the Respondent ultimately was able to
prove the veracity of Falcon’s statement at the hearing
before the judge has no bearing on the bona fides of its
belief at the time of the discharge.
2. The egregiousness of the conduct
Without minimizing the offensiveness of Taylor’s
conduct, it still must be analyzed within the framework
of the Act. Taylor’s conduct occurred while she was on
the picket line in support of an economic strike, an activ-
ity protected by the Act. In that context, a certain
amount of impulsive behavior is to be expected and must
be tolerated so as not to discourage the exercise of Sec-
tion 7 rights. See, e.g., CKS Tool & Engineering, Inc. of
Bad Axe, 332 NLRB 1578, 1585–1586 (2000), and cases
cited therein; Shalom Nursing Home, 276 NLRB 1123,
1137 (1985). Thus, any consideration of stripping Taylor
of the protection of the Act must be undertaken carefully.
Taylor, in the presence of a resident’s daughter, called
the resident and the daughter a “bitch” and “a little piece
of trash.” Falcon is not a nonstriking employee, so the
Clear Pine Mouldings standard—whether, under all the
circumstances, Taylor’s comments would reasonably
tend to coerce or intimidate employees in the exercise of
rights protected under the Act—does not directly apply.
But Clear Pine Mouldings states that an analogous test
applies where a striker’s statements are directed at non-
employees, such as Falcon.
Although Taylor’s comments were extremely offen-
sive, it is well established that such spontaneous picket
line activity as the use of obscene and insulting language
does not warrant the loss of an employee’s reinstatement
rights. See Chevron U.S.A., Inc. v. NLRB, 672 F.2d 359,
360 (3d Cir. 1982) (summarizing cases). Contrary to the
majority’s view, Taylor’s language did not imply a threat
that Taylor would mistreat Falcon’s mother. To be sure,
the language was disdainful of and insulting to both Fal-
con and Horan. But there was no suggestion, by word or
gesture, of any action that Taylor intended to take toward
either woman. In the absence of any such suggestion, the
mere fact that Horan was an 82-year-old resident of the
nursing home does not create a threat where there was
none. Accordingly, the judge concluded correctly that
Taylor’s conduct did not warrant the denial of her rein-
statement rights, and the Respondent violated Section
8(a)(3) of the Act by discharging her.
II. THE HIRING OF PERMANENT REPLACEMENTS
A. Facts
The strike began on November 17, 1999. Initially, the
Respondent relied on nonstriking employees, managers,
temporary employees, and volunteers to fill in for the
strikers. The Respondent commenced hiring permanent
replacements on or about December 15, 1999. It hired a
consulting firm to run a job fair to help it hire permanent
replacements, at a cost of approximately $16,000–
$17,000. In addition, the Respondent offered permanent
jobs to temporary workers it had taken on since the be-
ginning of the strike, agreeing to pay Class Act, one of
the agencies supplying temporary employees, $1100 per
Class Act employee that it converted to permanent status.
The Respondent also paid the replacements $12.19 an
hour, the wage rate for its most senior employees and
substantially more than the “new hire” rate of $10 an
hour in the recently expired contract.
The Respondent admits that it decided not to inform
the Union of its decision to permanently replace the
striking employees. Scott Cohen, owner of Class Act,
testified that the Respondent told him that its plans re-
garding permanent replacements were to be kept “hush-
hush” and that it needed to get as many bodies hired as
possible before the Union found out. Based on blind ads
for jobs similar to those held by the strikers, the Union
became suspicious that the Respondent was planning to
hire permanent replacements. Around the end of De-
cember 1999, the Union received a report from someone
who claimed that she was offered a permanent job with
the Respondent. The Union then arranged for a meeting
with the Respondent and a Federal mediator on January
3, 2000. At the January 3 meeting, the Respondent ad-
mitted that it already had hired “over 100” permanent
replacements.
On January 5, the Union sent the Respondent a letter
offering on behalf of the strikers to “return to work im-
mediately, as a group, and to continue working under the
terms and conditions of the [expired] collective bargain-
ing agreement . . . pending the negotiation of a successor
collective bargaining agreement.” Parker replied that
same day by letter stating, inter alia, that “in reviewing
your letter, it appears that it is not an unconditional offer
but includes a number of preconditions including but not
limited to” the retention of the expired contract’s union-
security clause and the apparent offer for either all or no
employees to return to work “as a group.” Parker asked
AVERY HEIGHTS 1313
the Union to advise her if her understanding was incor-
rect. The next day, the Union wrote to Parker advising
that it was not insisting on the retention of the union-
security clause. On January 20, 2000, the Union again
offered on behalf of the strikers to return to work, this
time with no stated conditions.
While these events were unfolding, on December 31,
1999, the Respondent’s CEO, Norman Harper, sent a
memorandum to the Respondent’s board of directors.
The memorandum, in pertinent part, reported that “as a
well-executed surprise event the day before Christmas,
we began to permanently replace striking workers at
Avery. . . . So far, we have hired 104 permanent re-
placements at Avery, replacing 60% of those on strike.
If [the Union] refuses to seriously negotiate in good faith,
we plan to add one or more permanent replacements each
day. We have [the Union] in a real bind at Avery.”
B. Analysis
An employer violates Section 8(a)(3) by failing to im-
mediately reinstate striking employees on their uncondi-
tional offer to return to work, unless the employer estab-
lishes a legitimate and substantial business justification
for failing to do so. NLRB v. Fleetwood Trailer Co., 389
U.S. 375, 378 (1967); Capehorn Industry, 336 NLRB
364, 365 (2001). That the positions claimed by the strik-
ers are filled by permanent replacements constitutes a
legitimate and substantial business justification. Fleet-
wood Trailer, supra; see NLRB v. Mackay Radio & Tele-
graph Co., 304 U.S. 333, 345–346 (1938). However, an
employer will still be held to have violated the Act if, in
hiring permanent replacements, it was motivated by “an
independent unlawful purpose.” Hot Shoppes, Inc., 146
NLRB 802, 805 (1964).
The issue here is whether the Respondent, in hiring
permanent replacements, had an independent unlawful
purpose of punishing the strikers and breaking the Un-
ion’s solidarity by replacing a majority of its supporters.
This is a case of first impression: the Board has never
found the hiring of permanent replacements unlawful
based on the Hot Shoppes “independent unlawful mo-
tive” exception.3 Neither has it articulated the standard
to be applied for proving the existence of such a motive.
I turn first to the latter threshold issue.
The General Counsel contends that a Wright Line4
analysis should apply. Under that analysis, the General

3 In a larger sense, this is really not a novel case. As the Fourth Cir-
cuit has explained, “The principle that otherwise lawful acts can be
rendered unlawful when motivated by improper intentions is widely
accepted and appears repeatedly throughout the law.” RGC (USA)
Mineral Sands, Inc. v. NLRB, 281 F.3d 442, 450 (4th Cir. 2002).
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
Counsel must first establish that union or other protected
activity was a motivating factor in the employer’s ad-
verse employment action against an employee. If that is
established, the burden shifts to the employer to show
that it would have taken the same action in the absence
of the protected activity. 251 NLRB at 1089. The judge
rejected the General Counsel’s contention, holding that
the General Counsel must show that the “independent
unlawful motive outweighed any legitimate and substan-
tial business [justification] that the employer may have
had.” However, Board law is clear that Wright Line does
apply where, as here, the respondent’s motivation for
taking the allegedly unlawful action is disputed. Id. Ad-
hering to Wright Line but adapting it to the present con-
text yields the following standard. Initially, the General
Counsel has the burden of showing that an independent
unlawful purpose was a motivating factor in the em-
ployer’s decision to permanently replace the economic
strikers. If that is shown, the burden shifts to the em-
ployer to prove that it would have taken the same action
even in the absence of any unlawful purpose.
The General Counsel sustained his initial burden. The
Respondent’s deliberate concealment of its plans,
Harper’s gloating memorandum referring to a “well-
executed surprise event” and to placing the Union “in a
real bind,” and Cohen’s testimony about a “hush-hush”
program to replace as many strikers as possible before
the Union found out, considered together, raise an infer-
ence that a desire to punish the strikers and break the
Union’s solidarity by permanently replacing a majority
of its supporters was a motivating factor in the Respon-
dent’s decision.5 Bolstering this finding is the fact that
the Respondent pursued this course of action at consider-
able economic cost to itself, paying Class Act a per cap-
ita fee of $1100 to convert its temporary employees to
permanent status, paying a consulting firm $16,000-
$17,000 to run a job fair to attract permanent replace-
ments, and paying replacements well in excess of its ex-
isting wage rate for new hires.6
The General Counsel having sustained his initial bur-
den, the burden shifted to the Respondent to show that it
would have taken the same action of secretly hiring per-
manent replacements even in the absence of any unlaw-

5 The Respondent argues that the Board has never required an em-
ployer to provide advance notice to a union of its plan to hire perma-
nent replacements. This argument misses the point. While the Re-
spondent may not have been required to notify the Union, the fact that
it was willing to go to great lengths to conceal its intentions is one
factor, among others, supporting a finding that the decision to replace
the strikers was motivated by an independent unlawful purpose.
6 Contrary to the majority’s assertion, the evidence summarized
above, ignored by the majority, does support a finding that the General
Counsel sustained his initial burden of proving unlawful motive.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1314
ful purpose. To this end, the Respondent presented the
judge and the Board with three reasons for its course of
action: (1) to provide quality care to its residents; (2) to
relieve its interim staff of long hours; and (3) to operate
long-term at a lower cost. The record shows, however,
that these were not the real reasons the Respondent se-
cretly hired permanent replacements, but are mere pre-
texts.
First, unlike the replacements, the strikers knew both
the residents and the work. The strikers, therefore, were
the ones capable of immediately providing the quality of
care the Respondent says it wanted. Indeed, both Harper
and Parker testified that they would have preferred to
have the strikers return to their jobs rather than to hire an
entirely new work force unfamiliar with the Respon-
dent’s operation. Therefore, if the Respondent were truly
concerned about the continuity of care, it would have
disclosed its plan to the strikers in order to induce them
to abandon the strike and return to work. Instead, the
Respondent took pains to keep the hiring of permanent
replacements a secret and thus acted in a manner incon-
sistent with a genuine desire to maintain quality care.
Second, the Respondent’s claim of employee “burn-
out” is contradicted by Harper’s memorandum, which
states that “[m]orale among staff and management re-
mains high and determined.” Thus, this alleged reason is
not supported by the record.
Third, the Respondent’s long-term cost analysis is
mostly confined to showing that permanent replacements
cost less than temporary workers. The Respondent also
contends that permanent replacements would have cost
less than what the Union was asking for at the bargaining
table, but it does not contend that strikers returning to
work under the terms of the expired contract would have
been more costly than the replacements. Indeed, as ex-
plained above, it was just the reverse: permanent re-
placements cost more than less senior returning strikers
would have and at least as much as the most senior re-
turning strikers would have. Again, if the Respondent’s
true motive were to reduce costs, then it would have re-
vealed its plan to permanently replace the strikers in or-
der to induce them to return to work under the terms of
the expired contract. Instead, it kept its plans secret,
which virtually ensured that cost savings would not be
realized.
Thus, the foregoing three reasons cannot be accepted
as a truthful explanation of the Respondent’s decision to
secretly hire permanent replacements. By offering such
transparently incredible reasons for its conduct, the Re-
spondent not only failed to rebut the General Counsel’s
case, but actually bolstered it. “It is . . . well settled . . .
that when a respondent’s stated motives for its actions
are found to be false, the circumstances may warrant an
inference that the true motive is an unlawful one that the
respondent desires to conceal.” Fluor Daniel, Inc., 304
NLRB 970 (1991), citing Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966).
In its brief to the Board, the Respondent proffered a
fourth reason for its secret plan: to obtain economic lev-
erage over the Union in bargaining. However, the Re-
spondent did not urge this fourth reason in its posthear-
ing brief to the judge. In fact, at the hearing, the Re-
spondent expressly disavowed any contention that it was
motivated by a desire to gain an economic advantage
over the Union.7 Where, as here, an employer has shifted
reasons for its actions, “an inference may be drawn that
the real reason for its conduct is not among those as-
serted.” Sound One Corp., 317 NLRB 854, 858 (1995)
(citation and internal quotation omitted), enfd. mem. 104
F.3d 356 (2d Cir. 1996).
Even assuming the bargaining-leverage rationale were
properly before the Board, the Respondent’s conduct still
violated the Act under the test set forth in a series of Su-
preme Court decisions carefully balancing the conflicting
legitimate interests of employers and employees in strike
situations. In striking that balance, the starting point is
that an employer’s refusal to reinstate striking employees
violates Section 8(a)(1) and (3) of the Act, unless the
employer demonstrates that its refusal is based on “le-
gitimate and substantial business justifications.” Fleet-
wood Trailer, supra, 389 U.S. at 378, quoting NLRB v.
Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967). The
need to continue business operations is such a justifica-
tion, and the employer that hires permanent replacements
is presumed to have done so “to protect and continue his
business by supplying places left vacant by the strikers.”
Mackay, supra, 304 U.S. at 345. In other words, the em-
ployer’s limited right to refuse reinstatement to economic
strikers is based on the presumption that such hiring is
necessary to continue business operations. This pre-

7 When the Union’s attorney asked whether the Respondent intended
to argue that the replacement of the strikers was “simply a wake up call
for the Union to begin bargaining seriously,” the Respondent’s attorney
replied as follows: “Well I’ll tell you that we are going to present evi-
dence that the reason that we hired permanent replacements was be-
cause the temporary replacements were getting burned out. It’s impor-
tant to have continuity of care and the cost factor. Are we going to rely
on a particular—are we going to say that it’s a tactic to strong arm the
union—no. Does that answer your question?” (Emphasis added.)
Moreover, CEO Harper himself denied—not once, but twice—that
gaining economic leverage was the motive. Asked why he had not
considered telling the Union about the permanent replacements, Harper
testified: “I didn’t see it as a negotiating lever. My only focus was on
the quality of services going forward in the future.” Asked a second
time, Harper reiterated: “Like I said previously, I just didn’t see it as an
option for leverage in negotiating.”
AVERY HEIGHTS 1315
sumption does not supercede the balancing of interests;
on the contrary, it results from such a balancing. Perma-
nently replacing strikers discourages union membership
and concerted activity. See NLRB v. Erie Resistor Corp.,
373 U.S. 221, 232 (1963). Nevertheless, the Court per-
mitted employers to hire permanent replacements after
engaging in the “delicate task . . . of weighing the inter-
ests of employees in concerted activity against the inter-
est of the employer in operating his business in a particu-
lar manner and of balancing in the light of the Act and its
policy the intended consequences upon employee rights
against the business ends to be served by the employer’s
conduct.” Id. at 229.
In sum, under the above test, the balance tips in favor
of an employer that hires permanent replacements in or-
der to continue operating its business. In that instance,
the employer’s legitimate and substantial business inter-
est is held to outweigh the invasion of the Section 7
rights of the permanently replaced economic strikers.
Here, however, the Respondent’s alleged business justi-
fications for hiring permanent replacements were not
“legitimate” or “substantial”; they have been exposed as
shams. Thus, there is nothing to put on the Respondent’s
side of the scale to balance against the damage to the
Section 7 rights of the striking employees. Those rights
necessarily predominate, and the Respondent’s failure to
reinstate the strikers violated the Act.
The majority incorrectly characterizes the Respon-
dent’s covert scheme as an economic weapon. The Re-
spondent’s conduct was not economically motivated. On
the contrary, the Respondent was successfully operating
its business without permanent replacements. Harper
admitted as much in his memo. The Respondent had no
bona fide need to hire.8 Indeed, as explained above, the
record shows that the reasons the Respondent advanced
for hiring permanent replacements were pretexts. In real-
ity, the Respondent’s independently unlawful motive was
to undermine the Union by engendering striker dissatis-
faction with the Union. The intended result of the Re-
spondent’s actions was to force a majority of the strikers
to endure the hardship of waiting an indefinite period of

8 In this respect, the Respondent’s conduct is akin to unit packing,
which the Board has long held unlawful. See, e.g., Airborne Freight
Corp., 263 NLRB 1376 (1982), enf. denied on other grounds 728 F.2d
357 (6th Cir. 1984); Suburban Ford, Inc., 248 NLRB 364 (1980), enf.
denied 646 F.2d 1244 (8th Cir. 1981). Unit packing is the “egregious
tactic of deliberately ‘loading’ the bargaining units so as to insure the
abortion of any fair election, . . . in direct opposition to the congres-
sionally declared national policy as set forth in the Act.” Suburban
Ford, supra at 373. The only difference between unit packing cases
and this case is one of timing: in unit packing, the employer seeks to
obstruct the formation of a bargaining relationship; here, the Respon-
dent sought to subvert an existing bargaining relationship.
time after the end of the strike to return to their jobs. The
foreseeable result of that hardship would be hostility to-
ward the Union for a perceived failure to protect the
strikers’ interests, thus driving a wedge between the Un-
ion and its formerly supportive members. This intended
consequence, described in Harper’s memorandum as the
“bind” in which the Union was placed, reveals the Re-
spondent’s independently unlawful motive in secretly
hiring permanent replacements in violation of Section
8(a)(3) of the Act.
My colleagues rely on Central Illinois Public Service
Co., 326 NLRB 928 (1998),9 to argue that employers are
permitted to use economic weapons in order to win eco-
nomic battles. That principle is undisputed, but irrele-
vant here. The Respondent’s conduct has nothing to do
with economic weapons. My colleagues’ discussion of
Central Illinois cannot mask the fact that they have failed
to explain how the Respondent’s secrecy is consistent
with a motive to gain economic leverage.10 Instead of
explaining how a secret hiring scheme could serve such a
motive, my colleagues say that the Board has never held
that the hiring of permanent replacements must be dis-
closed. In point of fact, as the judge noted, the Board has
never expressed an opinion on the subject one way or the
other. But, in any event, the Board’s silence on the issue
does not and cannot explain how the Respondent could
have gained bargaining leverage from keeping the hirings
secret. Harper understood that such leverage could only
have been exerted through disclosure. Asked why he had

9 Petition for review denied sub nom. Local 702, Electrical Workers
v. NLRB, 215 F.3d 11 (D.C. Cir. 2000), cert. denied 531 U.S. 1051
(2000).
10 Moreover, Central Illinois is distinguishable. In Central Illinois,
the employer locked out employees. Lockouts must be disclosed. Eads
Transfer, 304 NLRB 711, 712 (1991) (“[W]e conclude that an em-
ployer can only justify its failure to reinstate economic strikers for
legitimate and substantial business reasons based on a lockout by its
timely announcement to the strikers that it is locking them out in sup-
port of its bargaining position.”) (internal quotations omitted), enfd.
989 F.2d 373 (9th Cir. 1993). Moreover, a lockout cannot be exploited
to effect the permanent replacement of strikers. See Harter Equipment,
293 NLRB 647, 648 (1989). Under the majority’s holding today, how-
ever, a resourceful employer—i.e., one that successfully keeps its per-
manent replacement project hidden beneath a veil of secrecy—may
circumvent this inconvenient limitation attendant upon lockouts.
Citing, inter alia, Eads Transfer, the majority attempts to manufac-
ture a specious legitimacy for the Respondent’s conduct by claiming
that the Respondent promptly disclosed its hiring of permanent re-
placements after the strikers offered to return to work. That is not what
happened. What happened was that the Union got wind of what the
Respondent was up to, and the Respondent admitted its secret hiring
scheme when the Union confronted it in the presence of a Federal me-
diator. The Respondent’s admission in this regard was not an Eads-like
disclosure, but simply a rueful acknowledgment that the secret was out.
In the meantime, the Respondent had surreptitiously hired over 100
permanent replacements, representing more than half the positions in
the bargaining unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1316
not considered telling the Union about the permanent
replacements, Harper testified that he “didn’t see it as a
negotiating lever.” Indeed, despite their assertions to the
contrary, my colleagues tacitly admit the same point.
They say that “if the hiring of replacements persuaded
some employees that further striking was unwise, that
would inure to the bargaining benefit of the employer.”
But striking employees could only be thus persuaded if
they knew their employer was hiring permanent re-
placements. Here, by contrast, the Union and strikers
were deliberately kept in the dark. Harper testified truth-
fully when he denied a motive to gain leverage in collec-
tive bargaining. In truth, the Respondent’s conduct is
intelligible only in light of a purpose to punish the strik-
ers for their protected activity and subvert the Union.
The majority seeks to salvage its “economic leverage”
rationale by drawing a distinction between the Respon-
dent’s decision to hire permanent replacements and its
decision to do so secretly, and then defending the former
but not the latter as motivated by a purpose to gain eco-
nomic leverage: “[W]e are finding only that a purpose of
the hiring of replacements was to gain economic lever-
age. We are not saying that the failure to disclose had
that purpose.” Again, however, my colleagues miss the
point: undisclosed, the hiring of replacements exerted no
economic leverage.
Speaking in the abstract, the majority says that hiring
replacements gains “an employer” an economic advan-
tage, regardless of whether the union knows of that hir-
ing or not, because replacements enable operations to be
maintained during a strike. The issue, however, is not
what might motivate a hypothetical employer, but what
motivated the Respondent. My colleagues do not con-
tend, and there is no evidence, that the Respondent’s
secret hiring scheme was motivated by a need to main-
tain operations. On the contrary, as stated above, the
Respondent was successfully operating its business dur-
ing the strike without permanent replacements. There-
fore, the majority’s theoretical argument does not explain
the Respondent’s decision to secretly hire permanent
replacements.
In sum, the General Counsel has satisfied his burden of
showing that a desire to punish the strikers and break the
Union’s solidarity was a motivating factor in the Re-
spondent’s decision to secretly hire permanent replace-
ments. The Respondent, however, has failed to show
that it would have taken the same action even in the ab-
sence of any unlawful purpose. Accordingly, the judge
correctly found that the Respondent violated Section
8(a)(3) and (1) by failing to reinstate all the strikers upon
their unconditional offer to return to work.
The final remaining issue is the date on which the Un-
ion made that unconditional offer on the strikers’ behalf.
The judge found that the Union’s January 5, 2000 offer
was conditioned on the maintenance of the terms and
conditions of the expired contract. He concluded that the
Union’s January 20, 2000 offer to return was the first
unconditional offer, and that the Respondent violated the
Act by its refusal to reinstate all of the strikers at that
time.
The January 5 offer to return to work was a conditional
offer because, as Parker pointed out in her reply on that
same date, the expired contract contained a union-
security clause that did not survive contract expiration.11
On January 6, 2000, the Union advised Parker that it was
not insisting on the retention of the union-security clause.
The Union’s January 6 letter served as a clarification to
its January 5 offer, making it clear that it was not insist-
ing on the continued application of contract terms that
did not lawfully survive contract expiration. Therefore,
the Union made an effective, unconditional offer to re-
turn to work on behalf of the striking employees on
January 6, 2000. The Respondent’s liability for its fail-
ure to reinstate all striking employees runs from that
date.
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against you for supporting New England Health Care

11 Parker also challenged the January 5 offer because it was an offer
for the strikers to return “as a group,” displacing the permanent re-
placements. However, since the hiring of those permanent replace-
ments was unlawful under Hot Shoppes, supra, the Respondent was
obligated to accept the returning strikers as a group, displacing its re-
placement employees as necessary. Thus, the offer to return “as a
group” did not make the offer conditional.
AVERY HEIGHTS 1317
Employees Union, District 1199, AFL–CIO or any other
union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Opal Clayton, Patricia Hurdle, and Georgia
Stewart full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make the above-named employees whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, less any net in-
terim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of the above-named employees, and WE
WILL within 3 days thereafter notify those employees in
writing that this has been done and that the discharges
will not be used against them in any way.
CHURCH HOMES, INC. D/B/A AVERY HEIGHTS
Thomas E. Quigley, Esq., for the General Counsel.
Hugh F. Murray III, Esq. and Michael C. Harrington, Esq.
(Murtha Cullina LLP), of Hartford, Connecticut, for the Re-
spondent.
John M. Creane, Esq., and Kevin A. Creane, Esq., for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. This
case was tried in Hartford, Connecticut, on March 13–15, 19,
23, and 26–28, 2001. New England Health Care Employees
Union, District 1199, AFL–CIO (the Union) filed the charge on
February 17 and amended it on July 31, 2000.1 The complaint
issued on November 29, alleging that the Respondent, Church
Homes, Inc. d/b/a Avery Heights, violated Section 8(a)(1) (3)
and (5) of the Act. On December 12, the Respondent filed its
answer to the complaint denying the unfair labor practice alle-
gations and raising affirmative defenses.
The allegations in the complaint arose out of a strike en-
gaged in by the Respondent’s employees represented by the
Union. The strike commenced on November 17, 1999, and
ended when the Union made an unconditional offer to return to
work in January. There is no dispute that the strike was at all
times an economic strike. The following issues are framed by
the pleadings:2

1 All dates are in 2000 unless otherwise indicated.
2 In its answer, the Respondent asserted as an affirmative defense
that the strike had an unlawful purpose and was unprotected. The Re-
spondent did not pursue this claim in its brief.
1. Whether the Respondent violated Section 8(a)(1)
and (3) of the Act by terminating employees Opal Clayton,
Patricia Hurdle, Georgia Stewart, and Pauline Taylor for
alleged misconduct on the picket line.
2. Whether the Respondent violated Section 8(a)(1)
and (5) of the Act by misrepresenting to the Union its in-
tentions regarding the hiring of permanent replacements
for striking employees.
3. Whether the Section 8(a)(5) allegation is time-
barred by Section 10(b) of the Act.
4. Whether the Respondent had an independent unlaw-
ful motive in hiring permanent replacements for its strik-
ing employees, thereby violating Section 8(a)(1) and (3) of
the Act when it refused to reinstate those economic strik-
ers who had been replaced.
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent, and the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a not-for-profit corporation, provides
skilled and semiskilled health care services at its facility in
Hartford, Connecticut, where it annually derives gross revenues
in excess of $100,000 and purchases and receives goods valued
in excess of $50,000 directly from points outside the State of
Connecticut. The Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and a health care institution within
the meaning of Section 2(14) of the Act. The Respondent ad-
mits and I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Church Homes, Inc. owns and operates several facilities in
Connecticut serving the elderly and infirm. The sole facility
involved in this proceeding is the Avery Heights facility in
Hartford, Connecticut. That facility consists of a skilled nursing
facility, assisted living residences, independent living cottages
and adult day care. The facility is home to approximately 500
older adults who need various levels of care. Norman Harper
was the chief executive officer and Dr. Miriam Parker the ad-
ministrator during the period relevant to these proceedings.
The Union has represented a unit of service and maintenance
employees at the Avery Heights facility since the mid-1970s.
Unit employees work in all areas. The largest category of unit
employees is certified nursing assistants (CNAs). The most
recent collective-bargaining agreement was effective from No-
vember 1, 1995, through October 31, 1999. Agreement was
reached on this contract after a 5-week strike. This was the first
significant work stoppage in the history of the parties’ relation-
ship. According to Union President Jerry Brown, the parties

3 The General Counsel’s unopposed motion to correct the transcript
is hereby granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1318
had a relatively harmonious and productive relationship until
1995. As noted above, the Union commenced another strike on
November 17, 1999, when the parties failed to reach agreement
on a new contract. At the time of the strike, there were 180–185
employees in the unit.
The Union represents approximately 19,000 employees in
the State of Connecticut, employed in private and public sector
health care institutions. At the time of the hearing, the Union
had collective-bargaining relationships with 71 nursing homes,
which represented 27–28 percent of the homes in the State. It is
undisputed that the Union has tried over the years to negotiate
common wages and benefits at all the facilities it represents. To
achieve this result, the Union had five “pattern agreements”
which it sought from respective employers on an individual
basis depending on the maturity of the bargaining relationship.
Until 1995, the Respondent was party to an agreement consis-
tent with the pattern for the most mature relationships, provid-
ing for the highest level of wages and benefits. In 1995, the
Respondent entered negotiations intent on breaking away from
the pattern. Following the 5-week strike, the Union was forced
to accept an agreement that departed from its pattern in signifi-
cant respects. In addition, by negotiating a 5-year agreement,
the Respondent was able to separate itself from other employers
whose contract expiration dates coincided. The Union generally
sought common expiration dates to put increased pressure on
the employers by holding out the threat of massive strikes af-
fecting thousands of nursing home residents occurring at the
same time. This strategy also gave the Union leverage to obtain
increased public expenditures for nursing homes in the state
legislature.4
During the term of the 1995 contract, the Respondent termi-
nated two union delegates, Margarita Cortavarria and Pauline
Taylor, for alleged patient abuse. The Union pursued griev-
ances on behalf of both employees to arbitration. The arbitra-
tors sustained the termination of Cortavarria, but ordered Tay-
lor reinstated without backpay. The Union also filed a number
of unfair labor practice charges against the Respondent which
were deferred to the parties contractual grievance/arbitration
machinery pursuant to the Board’s decision in Collyer Insu-
lated Wire, 192 NLRB 837 (1971). In October 1998, the union
was certified as the representative of a unit of service and main-
tenance employees at Miller Memorial in Meriden, Connecti-
cut, a skilled nursing facility that was managed by the Respon-
dent for a charitable foundation. In addition, in the fall 1998,
the pattern agreements that the Union had negotiated with other
homes in 1995 were due to expire. The Union was able to ex-
tend about 50 of those contracts into the spring 1999 and began
an intense lobbying campaign to convince the State legislature
and governor to appropriate more money for nursing home
reimbursements that would fund higher wages and benefits for
the employees it represented. This campaign was successful,
resulting in a $200 million appropriation in the State budget for
Medicaid reimbursement, which was specifically designated for

4 Most nursing homes receive approximately 70 percent of their
revenue through Medicaid and Medicare reimbursement from the gov-
ernment. Because the Respondent’s facility was not exclusively a nurs-
ing home, less than a quarter of its revenue came from such sources.
increases in wages and benefits. Following this appropriation,
the Union negotiated new pattern agreements with other facili-
ties that included substantial increases in wages and benefits.
As a result, the wages and benefits in the Respondent’s contract
fell further behind the pattern typical for employers with such a
mature relationship. The pattern agreements that the Union
negotiated in the spring 1999 were 2-year agreements set to
expire in March 2001.
After the Union reached agreement with the other facilities
in the State, Union President Brown requested a meeting with
the Respondent’s CEO, Harper. This meeting occurred in July
1999 at a restaurant in Hartford. Only Brown and Harper were
present. Brown testified that he told Harper that the State’s
increase in Medicaid reimbursement rates “changed the land-
scape” for the upcoming negotiations. Harper disagreed, telling
Brown that the State’s action would have very little impact on
the Respondent because so little of its revenue came from
Medicaid. Brown then outlined for Harper the economics of the
recently-negotiated pattern agreements. According to Brown,
Harper said that he did not expect the economics to be a prob-
lem for the Respondent. Brown also raised the issue of the two
discharged delegates, who were awaiting arbitration. According
to Brown, Harper responded by saying that, while he might be
able to work something out for Cortavarria, he never wanted to
take Taylor back, that he didn’t like her as a human being. Ac-
cording to Brown, the meeting ended on a cordial note, with
Harper telling Brown that he did not want a fight with the Un-
ion. Harper also promised to get back to Brown regarding a
possible settlement of Cortavarria’s case.
Harper was not specifically asked about this meeting on di-
rect examination. On cross-examination by the Charging
Party’s counsel, Harper acknowledged having such a meeting
with Brown but denied telling Brown that the economics of the
new pattern agreement would not be a problem. According to
Harper, what he told Brown at this meeting is that the Respon-
dent was looking for essentially the same contract it then had
with a “reasonable improvement on the paycheck economics.”
Harper also denied, on cross-examination, that he made the
statement about Taylor that Brown attributed to him. According
to Harper, when Brown raised the issue of the two discharges,
he told Brown that his administrator and department heads were
the key people involved and that he was not in a position to
overrule their decision.
Negotiations for a new contract began on September 23,
1999. There were approximately 8 or 9 meetings before the
strike commenced on November 17, 1999. The Union was rep-
resented by a large negotiating committee comprised of em-
ployees, with union staff members Almena Thompson and
Louis Guida serving as spokespersons. Neither testified at the
hearing. Administrator Parker and Attorney Thomas Cloherty
represented the Respondent. Parker and Cloherty testified at the
hearing. The Union’s initial proposal called for a 16-month
term, with an expiration date in March 2001 to coincide with
that of its other contracts with Connecticut nursing homes. The
Union’s initial economic proposal would have returned the
Respondent’s wages and benefits to the pattern agreement. The
Respondent, in contrast, proposed a 7-year contract and only
modest improvements in wages and benefits, which would
AVERY HEIGHTS 1319
place the Respondent’s employees even further behind other
union-represented employees in the State. The Respondent also
proposed other changes in the contract, such as elimination of a
“free meal” for employees, reduction in the uniform allowance
and termination of the Respondent’s contribution to the Un-
ion’s training fund, which could be perceived as regressive.
Brown did not attend negotiations until the last meeting before
the strike, on November 16. At this meeting, Brown proposed a
three-year contract with a reopener in March 2001. The Re-
spondent had modified its proposal on duration to 6 years. The
parties were still far apart on economics, as well as some lan-
guage items. There is no allegation in the complaint that the
Respondent bargained in bad faith with the Union prior to the
strike.
During the strike, the parties had several meetings, on and
off the record, some with the assistance of the Federal mediator
and others with the mayor of Hartford, but no agreement was
reached. In addition, Brown and Harper met again at the same
restaurant on December 15, 1999. What occurred at this meet-
ing will be discussed in more detail later as it forms the basis
for much of the General Counsel’s theory of the case and re-
quires a credibility resolution. As of the date of the hearing in
this case, the parties had not met for negotiations since March
2000.
The Union’s negotiations with the Respondent occurred si-
multaneously with its negotiations with the sister facility,
Miller Memorial. A different attorney from the same law firm
represented Miller in those negotiations. Although the Union
tried to coordinate bargaining with both facilities, the Respon-
dent kept the negotiations separate. Nevertheless, the Union
commenced a strike at Miller on the same day, November 17,
1999. The Union also ended both strikes at the same time.
There is no allegation that the Respondent violated the Act with
respect to the unit at Miller Memorial. It appears from the evi-
dence in the record here that the Respondent reinstated all of
the strikers at Miller.
The strike at the Respondent’s facility formally ended either
on January 5, when the Union offered to return to work as a
group under the terms of the expired contract, or on January 20,
when the union made an offer without any conditions or limita-
tions.5 Only after the second offer did the Respondent reinstate
some of the striking employees. At a meeting with the mediator
on January 3, the Respondent told the Union for the first time
that it had hired more than 100 permanent replacements for
striking unit employees. The Respondent had not hired perma-
nent replacements during the 1995 strike, despite distributing
literature to the employees before that strike advising them of
this risk, and it did not hire any permanent replacements for
striking employees at Miller Memorial. As of the hearing, the
Respondent had reinstated approximately 78 of the striking
employees.
B. Termination of Strikers for Alleged Misconduct
The Board applies a two-part analysis to cases like this
where the issue is whether an employer may lawfully refuse to

5 The issues regarding when the Union unconditionally offered to re-
turn to work will be addressed in a later section of this decision.
reinstate or terminate a striker on the basis of alleged strike
misconduct. As summarized by the Board in Siemens Energy &
Automation, Inc., 328 NLRB 1175 (1999):
First, under the standard in Clear Pine Mouldings, 268 NLRB
1044, 1046 (1984), enfd. 765 F.2d 148 (9th Cir. 1985), cert.
denied 474 U.S. 1105 (1986), an employer may lawfully deny
reinstatement to a striker whose strike misconduct under the
circumstances may reasonably tend to coerce or intimidate
employees in the exercise of rights protected under the Act.
Second, under the framework for analysis in Rubin Bros., 99
NLRB 610 (1952), General Telephone Co., 251 NLRB 737
(1984), and Axelson, Inc., 285 NLRB 862 (1987), once the
General Counsel has initially established that a striker was
denied reinstatement for conduct related to the strike, the bur-
den of going forward with the evidence shifts to the employer
to establish that it had an honest belief that the striker in ques-
tion engaged in the strike misconduct. If the employer estab-
lishes that, then the burden of going forward shifts back to the
General Counsel to establish that the striker in question did
not in fact engage in the alleged misconduct.
See also Champ Corp., 291 NLRB 803, 806 (1988), enfd. 933
F.2d 688 (9th Cir. 1990). This analytical framework is consis-
tent with the Supreme Court’s decision in NLRB v. Burnup &
Sims, 379 U.S. 21, 23 (1964), holding that an employer who
terminates an employee in the mistaken belief that misconduct
occurred in the course of protected activity violates the Act,
even where the employer is acting in good faith on that mis-
taken belief. The Board, in Siemens, supra, explicitly stated that
it is inappropriate to analyze these cases under the analytical
framework of Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
1. Opal Clayton, Patricia Hurdle, and Georgia Stewart
Clayton, Hurdle, and Stewart were all employed prior to the
strike as full-time CNAs on the day shift. Stewart had been
employed by the Respondent for 24 years and Hurdle even
longer. Parker acknowledged that they were two of the three
most senior employees in the unit. Clayton had been employed
by the Respondent for about 3 years. All three were active
members of the Union, each serving as a picket captain during
the 1999 strike. Clayton had been an elected union delegate
since 1998, representing employees in disciplinary interviews
and at the initial stages of a grievance. There is no evidence in
the record that any of these employees had disciplinary issues
before the strike. On the contrary, Parker conceded that at least
one of them, Stewart, was a very good caregiver.
Hurdle and Stewart were among the first strikers to be re-
called after the Union made its January 20 offer to return to
work. Each received a letter dated January 21 instructing her to
report for work on January 25. Although both employees ar-
rived at the Respondent’s facility on time and dressed for work,
they were not permitted to start work. Instead, each was told
that she would have to first meet with Barbara Brigandi, the
Respondent’s director of nursing, and Parker. Stewart was the
first to meet with Brigandi and Parker. According to Stewart,
Parker opened the meeting by telling Stewart that there might
be a problem with something she did on the picket line. When
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1320
Stewart asked what it was, Parker at first would only tell her
that a family member of a resident had accused her of some-
thing. On further questioning by Stewart, Parker finally dis-
closed the identity of the accuser, telling Stewart that Richards
said that Stewart had been mimicking his mother on the picket
line. Parker did not give Stewart any other details, such as the
date and time this occurred, the identity of any others involved,
or the specific conduct which purportedly mimicked Sara Rich-
ards. Stewart admittedly became upset and angry. She told
Parker that if she knew this was going to happen, she could
have had her union representative, Almena Thompson, with
her. Parker told Stewart that the Respondent was going to in-
vestigate the incident so they could get Stewart back to work as
soon as possible.
Hurdle encountered Stewart as she was leaving Brigandi’s
office, but they did not have time to speak to one another. Only
Brigandi was present when Hurdle first entered the office, but
Dr. Parker joined them shortly. Parker started the meeting by
telling Hurdle that she could not let her work that day because
of something that happened at the picket line. Parker told Hur-
dle that a family member had complained about a gesture Hur-
dle made on the picket line. When Hurdle indicated that she
would like to know who complained, Parker told her it was
Richards. No other details of the alleged misconduct were
given. According to Hurdle, she responded to this news by
saying to Brigandi, “[Y]ou know we’ve been having problems
over the years, little problems, but you know I never got into it
with family or family members. You know I wouldn’t do that.”
Brigandi did not respond. Parker told Hurdle that the Respon-
dent had to investigate and that Hurdle had to go home. Hurdle
asked why they made her come to work if they knew they were
going to do this. Parker responded that the Union knew.6
Parker testified for the Respondent about her meetings with
Stewart and Hurdle, generally corroborating their testimony. In
particular, she acknowledged providing few specifics as to the
nature of the misconduct and that she was reluctant to reveal
the identity of the accuser. Parker also admitted that both Stew-
art and Hurdle denied engaging in any conduct toward a family
member. Parker’s testimony did differ from that of the employ-
ees in several respects. She testified, for example, that both
employees were asked if they wanted a union delegate and both
refused. I find this not to be credible in light of the fact that
Hurdle and Stewart were long-time union members who were
unlikely to decline such an offer in the face of a meeting like
this. Parker also testified that she left the meeting with Hurdle
for a moment and returned to hear Hurdle telling Brigandi, “If
it was, it was only gestures.” Parker then offered hearsay testi-
mony regarding what Brigandi told her Hurdle said while
Parker was out of the room. Parker admitted she was not pre-
sent for the conversation that preceded Hurdle’s statement
about “gestures”. Brigandi, who was still employed by the Re-

6 Hurdle had not been told anything by the Union before she re-
ported to work on January 25. Stewart testified that the night before,
she spoke to Thompson who told her that there might be a problem
when she went to work the next day. Thompson did not tell her what
the problem was and Stewart surmised that it was probably something
similar to the return from the last strike when it took several days to get
everybody back in his or her right positions.
spondent at the time of the hearing, did not testify. The Re-
spondent offered no explanation for her absence. I shall there-
fore disregard Parker’s hearsay testimony about the conversa-
tion between Brigandi and Hurdle.7
The next time Hurdle and Stewart heard from the Respon-
dent was several days later when they received termination
letters dated January 26. Each received an identical letter
signed by Parker that read:
We have conducted an investigation regarding a re-
ported event of your violation of policy of Avery Heights.
The act of mimicking and ridiculing a resident’s man-
nerism and behavior is a direct violation of a resident’s
right to dignity and respect. Each resident has the right to
be treated with consideration, respect and full recognition
of his/her innate value as a human being. Each employee,
in turn is charged with the obligation to act with respect
and sensitivity to our residents, families and friends. You
have intentionally violated this standard.
You are hereby notified that as of January 26, 2000,
you are terminated from your employment at Avery
Heights for mimicking the behavior of a frail, cognitively
impaired resident in front of her son as he exited Avery
Heights.
Parker admitted that she conducted no further investigation
between her meetings with Hurdle and Stewart and the drafting
of these letters.
According to Hurdle and Stewart, they did not learn the de-
tails of their alleged misconduct until they went to the unem-
ployment office for a hearing on February 17. At this hearing,
they were told that Richards had complained that Hurdle, Stew-
art, and another employee, Clayton, had mimicked his mother,
Sara Richards, by raising their hands and shouting, in unison,
“help me, help me.” Richards is known to repeatedly call out
in such a fashion. They also learned for the first time that this
incident occurred on November 19, 1999, the third day of the
strike.
Although Clayton was identified at the unemployment hear-
ing as being a participant in this conduct, she had not yet been
terminated. On the contrary, in response to the Union’s January
20 offer to return to work, Clayton had received a letter from
the Respondent notifying her that she had been permanently
replaced and her name placed on a preferential rehire list. After
Hurdle’s and Stewart’s unemployment hearing, Clayton re-
ceived a termination letter signed by Parker and dated February
22, which is identical to the letters sent to Hurdle and Stewart.
There is no dispute that neither Parker nor any other representa-
tive of the Respondent spoke to Clayton about her alleged mis-
conduct before sending this letter.
Parker testified that she and Brigandi made the decision to
terminate Clayton, Hurdle, and Stewart. According to Parker,
they were terminated because they mimicked and mocked the
behavior of a resident in front of her son while he was waiting
to exit the facility on November 19. Parker learned of this con-
duct in December from a nurse whose identity she could not

7 Hurdle denied making the statements that Parker claims Brigandi
reported to her.
AVERY HEIGHTS 1321
recall. This nurse told Parker that there had been an issue with
Richards on the picket line that involved a violation of resi-
dents’ rights. Upon receiving this report, Parker “made up [her]
mind to chat with Richards about it the next time she saw him.”
Although Parker could not recall how much time passed after
receiving this report, she recalled seeing Richards and speaking
to him about it during the holiday season. Richards told Parker
that, as he was waiting to exit the facility one day, Clayton,
Hurdle and Stewart, in unison, mimicked his mother’s cries of
“Help me! Help me! Help me!” Parker asked Richards to pro-
vide a written statement of the incident. He agreed to do so and
a statement was prepared by the Respondent’s social worker.
This statement is neither dated nor signed by Richards. The
statement reads in its entirety:
During the week of November 17, as I was waiting to
exit the facility in the driveway, three nursing assistants
(Opal Clayton, Pat Hurdle and Georgia Stewart) saw me in
my car and the following occurred:
They stopped and turned toward me and raised their
hands and said “Help me, help me, help me!” imitating my
mother. It made me feel very sad and depressed and angry
and uncomfortable in my concern not only for their current
attitude toward their participation in the strike and their re-
lationship with the nursing home, but also my concern for
their return to their jobs caring for my mother when they
come back. They were the team that cared for my mother
on the floor. My mother will be in a position where after
this strike she is taken care of by people who have ren-
dered their true attitudes toward my mother apparent, an
attitude that shows no respect for resident rights.
Parker testified that she did not do anything with this state-
ment at the time because she saw no need for urgency since the
employees were still on strike. In fact, she did nothing about the
incident until after the Union made its offer to return to work.
That is when she spoke to Hurdle and Stewart. Parker admitted
that she conducted no further investigation before making her
decision to terminate Hurdle and Stewart. Parker also admitted
that she did not speak to Clayton at all before terminating her.
According to Parker, there was no need for any further investi-
gation because Richards “was meticulous in his detail of what
occurred and [she] believed him.”
The Respondent called Richards to testify about the incident.
He confirmed giving the statement to Dr. Parker, as described
above, but had no explanation for not signing the statement.
Richards gave a more detailed account of the incident than that
which appears in his statement. According to Richards, at about
10:30 a.m. on November 19, 1999, his was the first car in line
waiting to exit the Respondent’s driveway as the strikers pick-
eted. He had his window rolled up. He was leaving the facility
after dropping off Desirene Kelly, a nonstriking employee of
the Respondent who also worked as a private duty companion
for Mrs. Richards. He recognized Clayton, Hurdle, and Stewart
as three aides who worked on the floor where his mother re-
sided, although none of them were her regular caregivers. Rich-
ards recalled observing the three employees pass his car three
times from west to east. He recalled that the three appeared to
take note of him and then, on the next pass, stopped, looked
directly at him, raised their arms and yelled “help me, help,
help me,” then continued. Richards immediately perceived that
the three employees were mimicking his mother. He testified
on cross-examination that he was certain of the identity of the
three employees because he knew them from his frequent visits
to the facility and their conduct stood out because it was so
startling. Although he recalled that there were approximately 25
picketers on the line at that time, he saw only Clayton, Hurdle,
and Stewart engage in this conduct.
Clayton, Hurdle, and Stewart each emphatically denied en-
gaging in the conduct described by Richards. They were cor-
roborated to some degree by a number of other strikers who
testified that they were on the picket line on November 19,
1999, with Clayton, Hurdle, and Stewart and did not see them
mimic Mrs. Richards. The General Counsel and the Charging
Party also attempted to cast doubt on the credibility of Richards
by offering testimony that Stewart and Hurdle were wearing
clothing that would render them unrecognizable because it was
so cold on the picket line that morning.8 Clayton, Hurdle, and
Stewart, as well as the other strikers who testified, did ac-
knowledge singing and chanting as they walked the picket line.
One of their chants involved raising their arms while shouting
“up with the Union, then lowering their arms and shouting
“down with the boss.” Richards denied hearing any such
chants during the many times he crossed the picket line.
Although the Respondent had hired a security firm to video-
tape incidents on the picket line, it is undisputed that no video-
taped evidence of this incident exists. Hurdle, Stewart, and
other striking employees who testified for the General Counsel
testified that the guards appeared to be videotaping all the time.
The Respondent’s witnesses, including one of the guards who
worked for the Respondent’s security contractor during the
strike, Doug Miller, disputed this. According to Miller and
Parker, the guards were instructed only to videotape when Dr.
Parker or another supervisor were exiting, or when an “inap-
propriate incident” occurred. The determination whether an
incident should be videotaped was apparently left to the discre-
tion of the guards.
The Respondent relies on the testimony of Richards to estab-
lish that Clayton, Hurdle, and Stewart were lawfully termi-
nated, arguing that this case comes down to the question
whether Richards or the three terminated employees are lying.
The issue is not as simple as the Respondent would frame it.
Because there is no dispute that Clayton, Hurdle, and Stewart
had engaged in a strike and were terminated for conduct related
to the strike, the Respondent had the burden of going forward
with evidence to establish that it had a honest, good-faith belief
that the employees engaged in misconduct serious enough to
warrant the denial of reinstatement. Resolution of this question

8 Certified records from the National Climatic Data Center that are in
evidence show that the air temperature in Hartford was 51 degrees with
winds blowing at 11 knots at 10 a.m. on November 19, 1999. By 11
a.m. the temperature had risen 2 degrees but the wind was still blowing
at a brisk 9 knots. The wind chill would have made it feel much colder
than 51–53 degrees. Moreover, the strikers had been on the picket line
at least since 7 a.m. when the wind chill was 30 degrees. Under these
conditions, it would not surprise me to find at least some strikers bun-
dled against the cold.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1322
does not turn on the credibility of Richards. It is the credibility
of Dr. Parker, and her belief that the employees engaged in
misconduct, that is essential to the Respondent meeting its ini-
tial burden. Resolution of that question turns on the information
she had available at the time she made the decision and the
process she used to arrive at that decision.
When Dr. Parker decided to terminate Hurdle and Stewart on
January 26, all she had available was the unsigned and undated
statement of Richards and the denials by Hurdle and Stewart
that they had mimicked Richards’ mother on the picket line.
Although Dr. Parker told both employees that they were being
placed on administrative leave pending an investigation, she
admits conducting no investigation. By the time Dr. Parker
decided to terminate Clayton, she had the benefit of additional
information that was presented at the unemployment fact-
finding hearing, but she had not yet provided Clayton with an
opportunity to respond to Richards’ accusation.9 The process
Dr. Parker followed in deciding to terminate three employees,
including two of its most senior CNAs, differed from the pro-
cedure employed before the strike when the Respondent sought
to terminate an employee for misconduct.
Dr. Parker testified that she chose to believe Richards rather
than the employees because he was “meticulous in his detail.”
While Richards was meticulous in testifying about the incident
at the hearing, the brief unsigned statement he provided to Dr.
Parker in December 1999, relatively close to the event, was
devoid of specifics. Dr. Parker’s haste in accepting Mr. Rich-
ards statement as proof of misconduct, in the face of Hurdle’s
and Stewart’s denials and without even questioning Clayton,
demonstrates that the Respondent did not terminate these three
employees because it had a “good-faith belief” they engaged in
misconduct. Before making her decision, Dr. Parker made no
effort to determine whether Richards might have been mistaken
in his perception of what occurred, or might have identified the
wrong employees as having been involved. Dr. Parker did not
even take the time to review the videotapes that had been taken
in the first week of the strike to see if there was any objective
evidence to corroborate Richards account.
My finding that Dr. Parker was not acting in good faith when
she made her decision to terminate these employees is suffi-
cient to establish a violation of the Act. 10 Champ Corp., supra.
Even assuming that the Respondent had met its initial burden, I
would still find a violation of the Act here. I do not doubt that
Richards sincerely and honestly believed that he saw three
CNAs mimic his mother on the picket line and that he was
convinced that Clayton, Hurdle, and Stewart were the three

9 Although Clayton was given the opportunity to “make a statement”
at a grievance meeting she attended with Suzanne DeCourcy, the Re-
spondent’s director of employee development, in March, this occurred
after Clayton had already been terminated.
10 I have also drawn an adverse inference from the Respondent’s un-
explained failure to call Brigandi as a witness. Because she is still em-
ployed as the Respondent’s director of nursing and was present for the
meetings with Hurdle and Stewart and made the decision with Dr.
Parker, she is a witness who would be expected to testify favorably for
the Respondent. Because she did not testify, I must infer that her testi-
mony would not have corroborated Dr. Parker. Grimmway Farms, 314
NLRB 73 fn. 2 (1994).
employees involved. At the same time, I believe the sworn
testimony of Clayton, Hurdle, and Stewart that they did not
engage in such conduct. In reaching this conclusion, I attach no
wait to the purportedly corroborative evidence of the other
striking employees, including the testimony regarding the
weather conditions on November 19. My decision to credit the
three employees’ denial is based instead on factors such as their
length of employment with the Respondent as caregivers, the
absence of any history of engaging in conduct that was in dis-
regard of residents’ rights, and the presence of guards with
video cameras near the picket line when the incident allegedly
occurred. It simply strains credulity to believe that these three
women would engage in such offensive conduct directed at a
resident or her family.
I agree with the Respondent that the conduct described by
Richards is patently offensive and should not be condoned.
However, even if Clayton, Hurdle, and Stewart engaged in this
conduct, it would not be sufficient under current Board law to
deny them their reinstatement rights. The Board and the courts
have long recognized that impulsive behavior is to be expected
on the picket line and that not every impropriety committed
during a strike deprives an employee of the Act’s protection.
See NLRB v. W.C. McQuaide, Inc., 552 F.2d 519 (3d Cir. 1977)
and cases cited therein.11 Over the years, the Board has at-
tempted to draw the line between “situations where employees
exceed the bounds of lawful conduct in a moment of exuber-
ance or in a manner not activated by improper motives and
those flagrant cases in which the misconduct is violent or of
such serious character as to render the employees unfit for fur-
ther service.” J. W. Microelectronics Corp., 259 NLRB 327
(1981). Accord: Shalom Nursing Home, 276 NLRB 1123, 1137
(1985). In Clear Pine Mouldings, Inc., supra, the Board enunci-
ated the test for determining whether verbal conduct is suffi-
cient to warrant an employee’s loss of reinstatement rights. The
Board held that it would determine “whether the misconduct is
such that, under the circumstances existing, it may reasonably
tend to coerce or intimidate employees in the exercise of rights
protected under the Act.” 268 NLRB supra at 1046. Accord:
Briar Crest Nursing Home, 333 NLRB 935 (2001).12 The
Board held further that it would apply an analogous test to the
assessment of strikers’ verbal and nonverbal conduct directed
against persons who do not enjoy the protection of Section 7 of
the Act. 268 NLRB supra at 1046 fn. 14.
Applying the Clear Pine Mouldings test to the conduct at is-
sue here, I find that the alleged mimicking of Mrs. Richards
was not sufficiently egregious to warrant denial of reinstate-
ment. The alleged misconduct here is similar to conduct, i.e.,
the taunting of a physically handicapped employee and the
crude remarks made when the husband of a nonstriking em-

11 The Court of Appeals denied enforcement of the Board’s order in
McQuaide (220 NLRB 593), because it rejected the view that a verbal
threat alone could never be sufficient to warrant denial of reinstate-
ment. There is no contention that Clayton, Hurdle, or Stewart verbally
threatened Mr. Richards or anyone else during the strike.
12 Although Clear Pine Mouldings and Briar Crest involved verbal
threats, the Board has applied this test to other forms of verbal conduct.
See Shalom Nursing Home, 276 NLRB, supra at fn. 3; Catalytic, Inc.,
275 NLRB 97 (1985).
AVERY HEIGHTS 1323
ployee died suddenly near the picket line, which the Board
found was not sufficient to warrant denial of reinstatement in
Shalom Nursing Home, supra. In that case, the administrative
law judge rejected an argument that employees who work in
patient care should be held to a higher standard when evaluat-
ing striker misconduct. I agree with the judge in that case that
there is “no basis for adopting a special standard as there is no
basis to find that nursing home employees are of a higher moral
character than other people.” Id. at 1137 fn. 17.
Accordingly, based on the above, I find that the Respondent
violated Section 8(a)(1) and (3) of the Act, as alleged in the
complaint, by terminating Patricia Hurdle and Georgia Stewart
on January 26 and by terminating Opal Clayton on February 22,
2000.
2. Pauline Taylor
Taylor has been employed by the Respondent for 8 years as a
CNA. She has been a union delegate since 1992, has served as
one of the Union’s two chapter officers and was a picket cap-
tain for both the 1995 and 1999 strikes. As noted above, the
Respondent terminated Taylor in 1998, but she was reinstated
without backpay in August 1999 as a result of an arbitration
award. Taylor joined the strike on November 17, 1999, and
picketed every day in the first week. Taylor testified that she
had a motor vehicle accident on Thanksgiving day, November
25, 1999, which caused her significant pain and injuries lasting
to the present day. According to Taylor, she did not go to the
picket line after her accident, except for one brief visit around
Christmas, for the remainder of the strike. After the Union
made its unconditional offer to return to work in January, Tay-
lor received a letter from the Respondent notifying her that she
had been permanently replaced but would be placed on a pref-
erential hiring list for vacancies. About 1 month later, Taylor
received the following letter from the Respondent, dated Febru-
ary 22 and signed by Brigandi, the director of nursing:
We have conducted an investigation regarding a re-
ported event of your violation of policy of Avery Heights.
The act of cursing and insulting a resident is a direct
violation of a resident’s right to dignity and respect. Each
resident has the right to be treated with consideration, re-
spect and full recognition of his/her innate value as a hu-
man being. Each employee, in turn is charged with the ob-
ligation to act with respect and sensitivity to our resident,
families and friends. You have intentionally violated this
standard.
You are hereby notified that as of February 22, 2000,
you are terminated from your employment at Avery
Heights for cursing and insulting a frail, physically im-
paired resident and her family member as the family
member passed through the picket line at Avery Heights.
Taylor testified that this letter was her first notification that
the Respondent believed she had engaged in misconduct on the
picket line. Taylor did not learn the details of the alleged mis-
conduct until she attended a negotiation session at the offices of
the Federal Mediation and Conciliation Service (FMCS) in
March. At that meeting, Union President Brown asked the Re-
spondent’s spokesman, Attorney Cloherty, why Taylor had
been terminated. Brown also asked for the date of the incident
and whether there was any video or audio tape of the incident.
After taking a caucus, Cloherty responded by telling the Union
that the incident occurred on December 5, 1999, and the Re-
spondent had captured it on tape. Brown asked to see the video-
tape before the upcoming third step grievance meeting regard-
ing Taylor’s termination. There is no dispute that no video or
audio tape of Taylor’s alleged misconduct has ever been pro-
duced.
Taylor also attended the third step grievance meeting in
March. According to Taylor, her representatives, Thompson
and Guida, pressed the Respondent for details of the alleged
misconduct. Suzanne DeCourcy and Brigandi, the Respon-
dent’s representatives, declined to provide any more details,
even including the name of Taylor’s accuser. DeCourcy told
Taylor and her representatives that they were only there to get
Taylor’s side of the story. Taylor denied having done anything
wrong. However, she acknowledged that she did not mention
her motor vehicle accident or her absence from the picket line
in December 1999.13 According to Taylor, she did not learn the
specifics of her alleged misconduct until she went to a hearing
on her unemployment claim in July. At that time she learned
that Kathy Falcon, the daughter of a resident, had made a writ-
ten complaint that Taylor was not fit to work with the elderly
because Taylor had cursed her and her family on a certain date.
Taylor testified that it was not until she went to a second unem-
ployment hearing in October that she learned what the specific
profanity was and the identity of the resident. At the hearing
before me, Taylor denied under oath that she engaged in the
specific conduct cited by the Respondent.
Dr. Parker testified that she made the decision to terminate
Taylor based on a written statement she received from Falcon
on December 15, 1999. According to Parker, Falcon called her
to complain about the incident on Monday, December 6, 1999,
and wrote the statement at Parker’s request. The statement,
which is handwritten, dated December 8, 1999, and signed by
Falcon, reads as follows:
On Saturday evening, December 4th at approximately
9:15pm, I was leaving Avery Heights Nursing Home after
visiting with my mother Louise Horan who is a resident of
station 3. When I came to the line of picketers, I was
stopped due to traffic build-up. While I was waiting for
my turn to proceed, I was verbally badgered by one of
your aids (sic)—Pauline Taylor. I could hear her very
clearly due to the loudness of her voice and the fact that
my window was opened half-way. The fact that Pauline
was screaming names and obscenities at me was not nearly
as upsetting as the fact that she also began to verbally at-
tack the reputation of my 82 year old mother. Her behavior
was unprofessional, immoral and just plain disgusting. Her
exact words were—“there’s that bitch Horan’s daughter.
That bitch—that piece of trash! She’s a little piece of trash
and so is her mother.”
Being in the health care field myself I find it very dif-
ficult to defend or excuse this kind of behavior for any

13 Neither DeCourcy nor Brigandi testified to contradict Taylor
about this meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1324
reason. My mother resides at Avery and has nothing to do
with the strike or Pauline Taylor. I hope that this angry
woman will never care for anyone I know. [Emphasis in
original.]
Dr. Parker testified that she did not ask Falcon any questions
about the incident and did not otherwise investigate this com-
plaint. According to Dr. Parker, she had no reason to doubt that
Falcon was telling the truth. In making her decision to termi-
nate Taylor, Dr. Parker also considered the fact that Taylor had
only recently returned to work following an 8-month suspen-
sion for another alleged violation of a resident’s rights. Al-
though Dr. Parker was in possession of Falcon’s written state-
ment since December 15, and aware of the incident even ear-
lier, she did not make her decision to terminate Taylor until
February 22, which was about the time that Taylor was due to
be offered reinstatement.
Falcon testified at the hearing in this case. Her description of
the incident was consistent with her previous statement. Al-
though counsel for the General Counsel and the Charging Party
extensively cross-examined her, I found nothing in her testi-
mony or demeanor to suggest she was fabricating her testi-
mony. Falcon did acknowledge that she made the complaint of
patient abuse that precipitated Cortavarria’s termination in Oc-
tober 1998 and that she testified for the Respondent at Corta-
varria’s arbitration hearing. The alleged abuse involved her
mother. Falcon also acknowledged seeing Taylor at Cortavar-
ria’s arbitration and that she knew that Taylor was a strong
union supporter. The General Counsel and the Charging Party
suggest this as a motive for fabricating her complaint against
Taylor, arguing that Falcon is not credible because she held a
grudge against Taylor stemming from Taylor’s support of Cor-
tavarria. I find it more likely that Taylor would hold a grudge
against Falcon and her mother for causing the discharge of her
friend and fellow union activist and for testifying against Cor-
tavarria at the arbitration. Because of this animosity, I find it
more likely than not that Taylor would direct such profanity at
Falcon on the picket line.
The General Counsel and the Charging Party argue that Tay-
lor could not have engaged in the alleged misconduct because
she was not even on the picket line on December 5. The Gen-
eral Counsel put Taylor’s medical records into evidence and
called her best friend as a witness to testify that she was caring
for Taylor in Taylor’s home around the time of this incident
and did not see Taylor go to the picket line. According to Tay-
lor’s friend, Geraldine Llewellyn, Taylor was in too much pain
to leave the house at that time. Although I am not a doctor, it is
apparent that the medical records in evidence do not appear to
support Taylor’s claims of disability for such a prolonged pe-
riod after her accident. The doctor who treated her in the emer-
gency room 2 days after the accident reported in his notes that
Taylor did not appear uncomfortable or in acute distress, denied
numbness or tingling in her legs and told the doctor that she
had been ambulatory with no apparent discomfort or impair-
ment since the accident. Although the doctor noted some ten-
derness in her neck and lower back on physical examination,
there were no other physical signs of any impairment. The doc-
tor prescribed “rest, ice to the affected areas 15–20 minutes
every two hours for the next two to three days”. The doctor also
instructed Taylor to continue taking over-the-counter Motrin
and gave her a prescription for 12 Flexeril to be taken three
times a day “as needed” for spasm. There is no evidence in the
record that Taylor sought any further medical treatment until
February 17. Taylor acknowledged on cross-examination that
she had a lawsuit pending regarding the motor vehicle accident.
The only objective evidence that would have confirmed
whether Taylor was on the picket line, the log book or sign-in
book maintained by the Union to keep track of employees at-
tendance at the picket line, is mysteriously missing. Curiously,
it is only the portion of the log book for the month of December
that the Union has been unable to locate. The General Counsel
offered the testimony of William Welz, the Union’s vice presi-
dent who had been in charge of arranging the facilities for a
strike headquarters from the beginning of the strike until
March. Welz testified that he rented a camper van from a place
in Rhode Island for use as a strike headquarters beginning in
January. According to Welz, he returned this van to the rental
facility in March, at the request of Almena Thompson. Welz
testified that Thompson called him later in March and told him
that some photographs and log books that had been in the van
were missing. At Thompson’s request, Welz contacted the
rental company and inquired whether any material had been
found in the van. Welz was told that the rental company had no
such material and that it was customary to throw out any mate-
rial found in a van when it is cleaned. Welz’ testimony was
almost entirely hearsay. Moreover, Thompson, who was pre-
sent through most of the hearing and presumably would have
direct knowledge of the missing log book, did not testify. I
must draw an adverse inference from her failure to testify on
this point, i.e., that the log book was not lost and that if pro-
duced it would show that Taylor was present on December 4
when the misconduct allegedly occurred.
It is undisputed that the Respondent terminated Taylor for
conduct related to the strike. Therefore, the Respondent has the
burden of establishing that it had an honest belief that Taylor
had engaged in misconduct serious enough to warrant denial of
reinstatement when it terminated her on February 22. Siemens
Energy & Automation, supra; Rubin Bros., supra. As noted
above, Dr. Parker based her decision solely on Falcon’s state-
ment without conducting any investigation and without provid-
ing Taylor with an opportunity to respond to the accusations
against her. As with the other terminations, it appears that the
Respondent seized on Falcon’s complaint to rid itself of an
active union delegate whom it had been unsuccessful in termi-
nating previously. In this regard, I note the testimony of Brown
that Harper told him, in July 1999, that he never wanted to take
Taylor back, that he didn’t like her as a human being.14 Al-

14 Although Harper denied making such a statement, I found his de-
nial less credible than Brown’s testimony. I note that the Respondent’s
counsel did not attempt to elicit this denial during Harper’s direct ex-
amination, suggesting that counsel did not anticipate such a contradic-
tion. It was only in response to leading questions on cross-examination
that Harper denied making such a statement. At the same time, how-
ever, he corroborated Brown’s testimony regarding the fact that such a
meeting had occurred and that the topic of Taylor’s reinstatement had
been discussed.
AVERY HEIGHTS 1325
though I have found Falcon to be a credible witness, and be-
lieve that the incident probably occurred as described in her
December 8, 1999 statement, I cannot find that the Respondent
was acting honestly and in good faith when Parker terminated
Taylor more than 2 months later without even questioning Tay-
lor about the incident.
Even assuming the Respondent had an honest, good-faith be-
lief that Taylor had called Falcon and her mother a coarse and
profane name, such conduct would not be sufficiently egregious
to warrant denial of reinstatement under current Board law. As
noted above, the Board’s Clear Pine Mouldings standard for
evaluating verbal conduct during a strike requires that Taylor’s
conduct be “such that, under the circumstances existing, it may
reasonably tend to coerce or intimidate” persons such as Ms.
Falcon. 268 NLRB supra at 1046. See also Shalom Nursing
Home, supra. The Board has historically found the use of epi-
thets and language such as that used by Taylor here does not
meet this objective test unless it is accompanied by overt or
indirect physical threats or raises the reasonable likelihood of a
physical confrontation. Nickell Moulding, 317 NLRB 826, 827–
830 (1995); Calliope Designs, Inc., 297 NLRB 510, 521
(1989); Catalytic, Inc., supra. See also National Assn. of Gov-
ernment Employees, 327 NLRB 676, 681 (1999), and cases
cited therein. There is no evidence here that Taylor’s profane,
abusive and unprofessional verbal attack on Falcon was ac-
companied by any words or actions that could reasonably be
deemed threatening or likely to result in a physical confronta-
tion.
Accordingly, based on the above, I find that the Respondent
violated Section 8(a)(1) and (3) of the Act, as alleged in the
complaint, by terminating Pauline Taylor on February 22, 2000.
C. The Respondent’s Hiring of Permanent Replacements
The undisputed evidence in the record establishes that the
Union, unable to reach agreement on a new collective-
bargaining agreement with the Respondent, commenced a
strike on November 17, 1999. There is no allegation or evi-
dence in the record that the Respondent had committed any
unfair labor practices that caused the employees to go out on
strike. Nor is there any allegation that the strike was prolonged
by any subsequent unfair labor practice. Thus the issue squarely
presented by the pleadings is whether, notwithstanding the
long-recognized right of an employer to hire permanent re-
placements for employees engaged in an economic strike,15 the
Respondent’s action in doing so here was discriminatorily mo-
tivated in violation of Section 8(a)(1) and (3) of the Act. The
General Counsel, while acknowledging that the Board has
never found such a violation, argues that language in a 1964
decision by the Board permits finding a violation where there is
“evidence of an independent unlawful purpose.” Hot Shoppes,
Inc., 146 NLRB 802, 805 (1964). The Charging Party would
go further, arguing that the Respondent’s hiring of permanent
replacements was unlawful even absent independent evidence
of a discriminatory motive because such conduct is “inherently
destructive of important employee rights,” relying on the Su-

15 See NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333
(1938).
preme Court’s decisions in Great Dane Trailers and Fleetwood
Trailer Co.16 The Respondent defends by relying on a wealth
of precedent holding, essentially, that an employer faced with
an economic strike by its employees can hire permanent re-
placements “at will.” See Belknap, Inc. v. Hale, 463 U.S. 491,
504 fn. 8 (1983), citing Hot Shoppes, Inc., supra.
1. The scope of the complaint
At the outset of the hearing, counsel for the General Counsel
stated that he was not seeking to establish a violation of the Act
under the Charging Party’s “inherently destructive” theory.
Because the Act confers on the General Counsel exclusive ju-
risdiction over the prosecution of unfair labor practice com-
plaints, I must first determine whether the Charging Party’s
theory of the case is cognizable. Zurn/N.E.P.C.O., 329 NLRB 1
(1999); New Breed Leasing Corp., 317 NLRB 1011 (1995);
Kimtruss Corp., 305 NLRB 710 (1991); Penntech Papers, 262
NLRB 264 (1982). The Charging Party argues that his legal
arguments do not impinge upon the General Counsel’s jurisdic-
tion because his theory of the case does not “enlarge upon, or
alter, the allegations” of the complaint. Under the Charging
Party’s view of the case, the difference between his and the
General Counsel’s theories is simply regarding the proper legal
standard to apply in analyzing the Respondent’s conduct.
The complaint, at paragraphs 13(a) and (b), alleges that,
“commencing on or about December 15, 1999, the Respondent
permanently replaced certain of its striking employees” and that
it engaged in that conduct “because its employees joined and
assisted the Union and engaged in concerted activities, and to
discourage employees from engaging in these activities.” Para-
graph 19 alleges that the Respondent, by engaging in this con-
duct with such motivation, “has been discriminating in regard
to the hire or tenure or terms and conditions of employment of
the employees, thereby discouraging membership in a labor
organization in violation of Section 8(a)(3) of the Act.” While it
is true that both the General Counsel’s and the Charging Party’s
theories require an evaluation of the Respondent’s motives in
hiring permanent replacements for its economic strikers, they
differ in significant respects. Under the General Counsel’s Hot
Shoppes theory, the burden is on him to prove that the Respon-
dent had an “independent unlawful purpose.” 146 NLRB at
805. In contrast, the Great Dane theory advanced by the Charg-
ing Party presumes that the Respondent had an unlawful object
and requires a determination of the degree to which its conduct
affected employee rights. If, as the Charging Party argues, the
Respondent’s conduct was “inherently destructive” of those
rights, the Board can find a violation even if the Respondent
establishes that it was motivated by legitimate business consid-
erations. If the adverse effect on employee rights is “compara-
tively slight,” the burden still rests on the Respondent to prove
it had a “legitimate and substantial business justification” for
hiring the replacements. 388 U.S. supra at 34. The theory ad-
vanced by the Charging Party would thus place a greater bur-
den on the Respondent than that proposed by the General
Counsel.

16 NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967); NLRB v.
Fleetwood Trailer Co., 389 U.S. 375 (1967).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1326
I find that the Charging Party’s argument here does “enlarge
upon or change” the General Counsel’s theory of the case. To
agree with the Charging Party’s theory would essentially over-
rule long-standing precedent, including Hot Shoppes, that has
imposed only a minimal burden on an employer where the hir-
ing of permanent replacements during an economic strike is at
issue.17 A decision whether to argue for overruling such prece-
dent lies exclusively with the General Counsel. Because the
General Counsel is not arguing that the Respondent’s hiring of
permanent replacements was “inherently destructive” of em-
ployees’ Section 7 rights, I shall not address the Charging
Party’s theory of the case. See Zurn/N.E.P.C.O., supra.
2. Facts
The Respondent did not hire permanent replacements at the
outset of the strike. Instead, the Respondent relied on non-
striking employees, managers, temporary employees, and vol-
unteers to perform the work of its striking employees. In its
answer to the complaint, the Respondent admitted the allega-
tion that it commenced hiring permanent replacements on De-
cember 15, 1999. The evidence adduced at the hearing, includ-
ing evidence proffered by the General Counsel, indicates that
no permanent replacements were hired before December 22,
1999. Because the Respondent’s answer is a confessory admis-
sion, I must find as alleged in the complaint that the Respon-
dent began hiring permanent replacements on December 15,
1999. C.P. Associates, 336 NLRB 167 (2001). This date coin-
cides with a meeting between Union president Brown and the
Respondent’s CEO Harper at which the General Counsel al-
leges that the Respondent unlawfully misrepresented its inten-
tions regarding the hiring of permanent replacements. Brown
testified that Harper told him at this meeting that the Respon-
dent had not hired permanent replacements and had no inten-
tions of doing so. Harper denied making any such commitment.
Before reaching this credibility resolution, it must be deter-
mined whether the Respondent already had made the decision
to hire permanent replacements before Harper met with Brown.
If not, then Harper’s statement would not be a misrepresenta-
tion.
The precise date on which the Respondent made the fateful
decision to begin permanently replacing the strikers is in dis-
pute. The Respondent’s CEO, Harper, and its administrator, Dr.
Parker, testified regarding the decision.18 Harper testified that
this decision was made in mid-December when it became ap-
parent that the strike would not soon be over. Harper was “quite
sure” the decision had not been made by the time he met with
Brown on December 15, 1999. According to Harper, the deci-

17 The Board recently reaffirmed the principal that the hiring of per-
manent replacements during an economic strike does not cause the
long-term consequences that would be indicative of inherently destruc-
tive conduct. Capehorn Industry, Inc., 336 NLRB 364, 366–367
(2001).
18 Harper testified that the decision was made at a meeting with
Parker, the Respondent’s attorney, Cloherty, and its chief financial
officer, Ray Gasparini. Dr. Parker did not identify Cloherty as a partici-
pant in the decision. Gasparini did not testify. Although Cloherty testi-
fied as to other matters, he was not asked about the Respondent’s deci-
sion to hire permanent replacements.
sion was made a week later, about December 22, 1999. On
cross-examination, Harper conceded that he was not clear on
the date and that it was possible that the decision was made
earlier. Dr. Parker testified that the decision was made “around
December 14, [1999] or so.” She acknowledged, however, that
the Respondent began exploring the possibility of hiring per-
manent replacements earlier, within the first week to 10 days of
December. Robert DeLisa, a consultant hired by the Respon-
dent to assist it in recruiting permanent replacements, testified
that he was first contacted by Suzanne DeCourcy, the Respon-
dent’s director of employee development, in late November or
early December 1999. After meeting with DeCourcy, DeLisa,
and his staff developed a plan which included using a job fair to
generate a pool of applicants from which permanent replace-
ments could be hired. Invoices from DeLisa, which were paid
by the Respondent, show that he started working on this project
on December 1, 1999. By December 10, 1999, DeLisa’s com-
pany had placed ads with radio stations and newspapers. On
December 15, 1999, two of his employees staffed a job fair run
by another organization and on December 13–17 and 20–22,
1999, staffed its own job fair to recruit potential applicants for
the Respondent.
In addition to utilizing the services of DeLisa’s consulting
company, the Respondent turned to temporary employees that
had started working after the strike began as a source of perma-
nent replacements. The testimony of Dr. Parker and Gayle
McAllister, the Respondent’s director of operations, indicates
that the Respondent started offering permanent employment to
these temporary employees in mid-December. Scott Cohen, the
owner of Class Act Cleaning, one of the agencies supplying
temporary employees to the Respondent in the beginning of the
strike, testified that he first learned that one of his employees
had been offered a permanent position with the Respondent
sometime during the second week of December and that he
spoke to McAllister about this during the second or third week
of December 1999. Cohen reached an agreement with
McAllister under which the Respondent would pay class act
“$1100/head” for each employee who converted from Class
Act to the Respondent’s payroll. Invoices in the record estab-
lish that the Respondent started receiving invoices for this fee
on December 22, 1999. Ingrid Tifa, who started working in
housekeeping for the Respondent through another temporary
agency on November 29, 1999, testified that she was offered
permanent employment on December 22, 1999. Summaries
prepared by the Respondent from its payroll and personnel
records show that most employees who converted from tempo-
rary to permanent did so December 22–24, 1999.
Based on the testimony of Dr. Parker and the other evidence
regarding the Respondent’s efforts to hire permanent replace-
ments, I find that the Respondent had made its decision to per-
manently replace the strikers no later than December 14, 1999.
There is not a shred of evidence in the record to corroborate
Harper’s testimony that no decision had been made before he
met with Brown.
As noted above, the parties’ last negotiation session before
the strike was on November 16, 1999. Brown testified that,
after the strike began, he telephoned Cloherty, the Respon-
dent’s attorney, about once a week to ask if there were any
AVERY HEIGHTS 1327
developments, or anything that the parties needed to talk about.
Each time, Cloherty replied in the negative. Cloherty acknowl-
edged receiving several telephone calls from Brown in the first
few weeks of the strike. Both Brown and Cloherty recalled
having a specific discussion on December 2 or 3, 1999, regard-
ing the possible duration of the strike. Brown testified that he
told Cloherty that the Union would not do what it did in 1995,
i.e., offer to return to work without a contract. He told Cloherty
that the Union wanted to resolve the contract before returning
to work this time. Brown acknowledged saying to Cloherty
that, if the parties’ positions did not change, he expected it to be
a long strike. Cloherty’s testimony regarding this conversation
was consistent with Brown’s testimony. There is no dispute
that, at the conclusion of each conversation, Brown would gen-
erally tell Cloherty to call him if anything changed on the Re-
spondent’s side. Neither Brown nor Cloherty recalled having
any specific discussion regarding permanent replacements.
Brown testified that he stopped calling Cloherty about four
weeks into the strike, which would be in mid-December.
Brown testified that he contacted Harper directly sometime
in December to congratulate him on the way he handled an
incident that occurred on the picket line at the Respondent’s
Miller Memorial facility in Meriden. The incident apparently
involved a racist attack on one of the strikers which Harper had
acted swiftly to condemn. After expressing his appreciation for
Harper’s response, Brown suggested that the two meet to see if
there was an opportunity to resolve the strike. Harper agreed to
meet Brown on December 15, 1999, at Corvo’s Restaurant in
Hartford. Brown and Harper met as planned on December 15.
No one else was present. Brown testified that he told Harper at
this meeting that incidents like the one in Meriden were the
type of things that could happen during a strike which were not
planned or anticipated but would make settlement more diffi-
cult. He went on to cite other examples of unanticipated events
that could protract a strike, such as picket line misconduct or
the hiring of permanent replacements. Brown suggested the
parties try to resolve the contract issues before these things
happened. According to Brown, Harper responded by saying
“we have no intention of hiring permanent replacements. We
are not hiring permanent replacements. We’re doing great with
temporaries.” Harper then commented that “U.S. Nursing is a
great outfit.” U.S. Nursing is known to the Union as a supplier
of temporary replacements in strike situations. According to
Brown, he and Harper then discussed some of the contract is-
sues separating the parties. Brown testified that he and Harper
discussed the duration of the contract, with Harper taking the
position that he wanted a long-term contract for stability and
that he did not want an expiration date that coincided with the
Union’s other contracts. Harper told Brown that he didn’t want
to be competing with other facilities for replacement workers.
Brown recalled that Harper also expressed his belief that the
Union would ultimately agree to a 4-year contract in 9 weeks.
Brown replied that the Union would not agree to 4 years in nine
weeks. Brown and Harper also discussed the economic package
and the Union’s desire to bring the Respondent back into the
pattern agreement. At one point during the meeting, Brown
proposed a 3-year contract with an agreement that the next
contract would also be for 6 years with binding arbitration if the
parties could not agree on the terms. According to Brown,
Harper scoffed at this proposal, saying that an arbitrator would
have to consider the Respondent’s ability to pay and the Re-
spondent had the ability to pay. Brown testified that 60–70
percent of the conversation at this meeting involved the con-
tract duration and benefit fund contributions. At the end of the
meeting, he and Harper shook hands and Harper said the meet-
ing had been useful, that the lines of communication were still
open. He told Brown that he would not be doing the negotia-
tions, that Cloherty would be contacting Brown for negotia-
tions. Brown heard nothing further from Harper or Cloherty
until the parties met at the FMCS on January 3.
Harper’s testimony regarding the December 15, 1999 meet-
ing was elicited primarily through leading questions from the
Respondent’s counsel. Although Harper corroborated much of
Brown’s testimony as to the subjects that were discussed, he
denied that there was any mention of permanent replacements.
He specifically and vigorously denied making the statements
attributed to him by Brown regarding the Respondent’s inten-
tions. Harper testified that it became apparent to him at this
meeting that the Respondent was in for a long strike, that there
would be no settlement unless the Respondent capitulated to the
Union’s demands. Harper’s testimony regarding this meeting
was far less detailed than Brown’s testimony, which at times
appeared to be a verbatim record of what was said. The credi-
bility issue and my findings regarding this meeting will be dis-
cussed in my analysis of the 8(a)(5) allegation.
Although there is a dispute whether Harper gave Brown any
assurances at the December 15 meeting that the Respondent
was not going to hire permanent replacements, there is no dis-
pute that Harper did not tell Brown that the Respondent was
even considering the matter. In fact, the Respondent’s wit-
nesses admitted that a decision was made not to inform the
Union of the Respondent’s plans to permanently replace the
striking employees. Moreover, Cohen, the owner of class act
cleaning, testified that McAllister told him, during their discus-
sion of Respondent’s interest in hiring Cohen’s temporary em-
ployees, that the Respondent’s plans were to be kept “hush-
hush”. McAllister told Cohen not to say anything to anyone
associated with the Union. McAllister also told Cohen that the
Respondent needed to get as many bodies in as it could before
the Union found out. Although McAllister denied making such
statements to Cohen, I found her not to be a very credible wit-
ness. Her answers were often evasive and nonresponsive and
she professed a lack of recall about virtually any matter of im-
portance during the early days of the strike. Under those cir-
cumstances, her supposed recollection that she did not make
these statements to Cohen is hard to believe. In addition, Cohen
appeared to be testifying credibly. Cohen acknowledged that
his business relationship with the Respondent ended on a sour
note, with accusations in both directions of improper conduct.
However, he has no stake in the outcome of these proceedings
and no reason to commit perjury by fabricating testimony in
these proceedings.
Despite the Respondent’s efforts to keep the Union from
learning about its plans, information came to the attention of
the Union which caused it to become suspicious. Brown testi-
fied that he was shown a flyer that had been posted about a job
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1328
fair for people interested in positions similar to those occupied
by the strikers. The flyer did not identify any particular em-
ployer. Around the same time, Brown learned from a member
that a similar advertisement was being broadcast on a polish-
language radio station in New Britain, Connecticut. In order to
determine whether the Respondent was soliciting applicants,
Brown sent several members who did not work at the Respon-
dent’s facility to the job fair. One of these members reported
back to him that, after attending the job fair, she was called and
offered a permanent position with the Respondent.19 Brown
could not recall the exact date he received this information, but
expressed his belief that it was right around Christmas, most
probably during the week between Christmas and New Years.
The invoices from DeLisa’s company, which held the job fair
for the Respondent, show that the last day of the fair was De-
cember 22, 1999. Upon receiving this information, Brown
called the Federal mediator and requested him to set up a meet-
ing with the Respondent for January 3.
Before meeting with the Respondent, Brown had a meeting
with attorney Emanuel Psarakis on December 22. Brown has
known Psarakis for many years as a management attorney rep-
resenting other facilities. Psarakis was not representing the
Respondent at that time and worked for a different law firm
than Cloherty and the Respondent’s counsel. Brown’s meeting
with Psarakis came about after Brown had left a voice mail
message for one of the trustees of Miller Memorial. Miller is
the nursing home in Meriden, Connecticut, that was managed
by the Respondent for a nonprofit, charitable foundation. As
noted previously, the Union had been simultaneously in nego-
tiations with the Respondent for the Avery Heights and Miller
facilities. Brown reached out to the trustees in the hope of put-
ting pressure on the Respondent to come to terms on a contract
at Miller. It was Psarakis who responded to Brown’s message
to the trustees.
Psarakis and Brown met at a diner in Rocky Hill, Connecti-
cut. No one else was present. Psarakis opened the meeting by
stating that he did not represent the Respondent, that the trus-
tees were his clients, and that he was not handling labor rela-
tions for them. Brown and Psarakis then discussed the issues
separating the Union and the Respondent at Miller. At one
point in the conversation, the subject of permanent replace-
ments came up. According to Psarakis, Brown said he heard
that the Respondent was hiring permanent replacements at
Avery Heights, and “there’s going to be a war. I will bring in
the AFL–CIO.” Brown denied making such a statement to
Psarakis. According to Brown, he told Psarakis that if the Re-
spondent hired permanent replacements at Miller, it would be a
“serious thing.” Brown testified that he raised this subject with
Psarakis because of his suspicions that the Respondent was
already hiring permanent replacements. On cross-examination,
Brown acknowledged that he probably told Psarakis that he

19 I received this testimony, not for the truth of the statements in the
flyers and the reports Brown received, but to show Brown’s state of
mind and explain his subsequent actions. Whether the member was in
fact offered a job with the Respondent is not as significant as the fact
that the Union was presented with information that caused it to believe
that the Respondent was hiring permanent replacements.
suspected that the Respondent was hiring permanent replace-
ments. There is no dispute that Psarakis did not tell Brown at
this meeting that the Respondent was in fact hiring permanent
replacements at the Avery Heights facility.20
The parties met, as planned, on January 3 at the offices of the
FMCS. Brown attended this meeting with union staff members
Guida and Thompson and an employee committee. The Re-
spondent was represented by Attorney Cloherty and Dr. Parker.
At this meeting, Brown asked Cloherty directly if the Respon-
dent had hired permanent replacements. Cloherty said yes.
When Brown asked how many, Cloherty said “over 100.” This
represented more than half the positions in the bargaining unit.
Brown then asked if the Respondent had any written agree-
ments or anything in writing about the status of the replace-
ments. Cloherty replied that it did not. Brown admitted that he
did not bring up at this meeting the assurance Harper gave him
less than 3 weeks earlier that the Respondent was not going to
hire permanent replacements. Brown also asked Cloherty what
the Respondent was paying the replacements and Cloherty said
$12.19 an hour. This was more than the Respondent was offer-
ing the Union as a starting wage in negotiations at that time.
When Brown asked Cloherty about benefits, Cloherty said the
Respondent had not decided yet what to do about benefits, but
the replacements would be covered by whatever benefits were
agreed upon in a new contract. Although there are some slight
differences in Cloherty’s recollection of the conversation, he
essentially corroborated Brown as to material parts of the meet-
ing, i.e., that Brown asked about replacements and he told
Brown that the Respondent had already hired “around 100”
replacements. He also agreed with Brown’s version of the con-
versation regarding the wages and benefits paid to the replace-
ments.21
After this meeting, Brown called a meeting of the strikers
from Avery Heights and Miller. Brown told the striking em-
ployees what had happened at the January 3 meeting and rec-
ommended they make an immediate offer to return to work.
The members agreed and, by letter dated January 5 and faxed to
the Respondent’s counsel the same day, the Union made the
first offer to return to work. In this letter, Brown offered on
behalf of the strikers to “return to work immediately, as a
group, and to continue working under the terms and conditions
of the collective bargaining agreement in effect as of October
30, 1999, pending the negotiation of a successor collective
bargaining agreement.”
Dr. Parker responded to the Union’s offer in a letter the same
date. In this letter, Dr. Parker expressed the Respondent’s will-
ingness to offer the striking employees reinstatement under the
Board’s Laidlaw doctrine.22 Specifically, Parker told the Union
that “employees who are presently working would retain their
positions. Other bargaining unit positions would be available
for striking employees. If insufficient positions existed, striking

20 There is also no dispute that the Respondent did not hire any per-
manent replacements for striking employees at Miller.
21 At another meeting the same day, in the presence of the mediator,
Brown asked the attorney representing the Respondent in the Miller
negotiations, Louis Todisco the same question. Todisco told the Union
that no permanent replacements had been hired at Miller.
22 Laidlaw Corp., 171 NLRB 1366, 1369 (1968).
AVERY HEIGHTS 1329
employees would be placed on a preferential hiring list.” Dr.
Parker also questioned whether the Union’s offer was uncondi-
tional. In her letter she specifically asked whether the Union
was seeking retention of the union-security clause as a condi-
tion to reinstatement and whether the phrase “return as a group”
meant either all employees or no employees. Dr. Parker also
responded, by letter on January 5, to the Union’s inquiry at the
January 3 meeting regarding the status of hiring of permanent
replacements. She advised the Union that all positions in the
job categories of housekeeping, drivers, maintenance, laundry,
cooks, dietary personnel, Heights housekeeping, Heights main-
tenance, Heights dishwashers, Heights wait staff, and all but a
36-hour position for a Heights cook, had been filled by perma-
nent replacements. Dr. Parker advised the Union further that
there were 25 CNA positions and 15 part-time positions in the
nursing department that were still available for the returning
strikers.
Brown responded to Parker’s letters on January 6. He stated
that the Union was not insisting that the union security clause
be honored in the absence of a contract and he reiterated the
offer to return “as a group,” explaining that this meant the strik-
ing employees would not be displaced by permanent or tempo-
rary replacements, but would not have to be recalled or could
face layoff if work no longer existed for them because, for ex-
ample, a wing had closed or the census was greatly reduced. It
is undisputed that the Respondent did not take any of the strik-
ing employees back in response to this offer.
On January 12, the parties met with the Mayor of Hartford at
city hall. The mayor was attempting to bring about a settlement
of the strike. Brown and Thompson were present for the Union
and Cloherty and Harper for the Respondent. Brown testified
that Cloherty gave a long explanation for the Respondent’s
decision to hire permanent replacements, citing the need for
stability in light of Brown’s statements indicating it would be a
long strike. Cloherty also told the Mayor and the Union that the
Respondent had to make a commitment of permanent employ-
ment to get replacements. When asked if there was any way
that the Respondent could take the strikers back, Cloherty re-
plied that the Respondent was “on the hook” to the replace-
ments, that it had made binding commitments to them, citing
the Supreme Court’s Belknap decision. Cloherty told the Mayor
and the Union that the Respondent was prepared to negotiate a
contract with the Union, but could not discuss terminating the
replacements to make room for the returning strikers. The
Mayor asked the Respondent for a moratorium on hiring per-
manent replacements for 10 days during which the parties
would engage in intense negotiations for a contract. The Re-
spondent agreed. Cloherty did not dispute Brown’s testimony
regarding this meeting.
The parties did hold several meetings in the 10-day period
after this meeting, but they were unable to reach agreement on
a contract. At a meeting in Cloherty’s office on January 19, at
which Harper was present, Brown proposed a 4-year contract.
When the Respondent rejected this proposal, Brown reminded
Harper of the prediction he made at their December 15 meeting,
i.e., that the Union would agree to 4 years in 9 weeks. Brown
said, “it’s been nine weeks, does that change your position?”
Harper replied, “no.” On January 20, the Union presented the
Respondent with another offer to return to work. This offer was
explicitly unconditional with no mention of terms and condi-
tions or reinstatement as a group. It is undisputed that, in re-
sponse to this offer, the Respondent began reinstating strikers
to vacant positions. By the time of the hearing, the Respondent
had reinstated 78 or 79 strikers. The last formal negotiation
session occurred on March 3 without any agreement being
reached. The Union has maintained a picket line at the Respon-
dent’s facility since January 20 to protest the Respondent’s
refusal to reinstate all the strikers.
Harper and Parker testified regarding the reasons for the Re-
spondent’s decision to hire permanent replacements. They testi-
fied that the Respondent chose to change its strategy and hire
permanent replacements because of concerns about continuity
of care for the residents, morale of the staff and reliability and
consistency of using temporary employees and volunteers over
a long term. The decision to begin hiring permanent replace-
ments coincided with statements made by Brown, in his tele-
phone conversation with Cloherty on December 2 or 3 and his
meeting with Harper on December 15, indicating that the strike
would not be over soon. Dr. Parker testified that she observed
that the managers, supervisors, and nonunit staff who were
working mandatory 12-hour shifts to replace the strikers, were
getting tired. Some expressed to her their concerns about work-
ing long hours during the upcoming holidays. Dr. Parker testi-
fied further that the volunteers, although well-meaning,
couldn’t be counted on to continue to devote time to perform-
ing work of strikers in the face of competing demands on their
time, particularly with the holiday season approaching. Accord-
ing to Dr. Parker, the temporary employees that had been hired
directly and through agencies, were not a good long-term solu-
tion. There was considerable turnover among the temporary
employees. Each time a new temporary employee was sent to
the facility, he or she would have to undergo an orientation to
learn the Respondent’s procedures and policies. Constantly
changing caregivers would also be detrimental to the residents
who would not be able to develop any kind of relationship with
their caregivers. Dr. Parker also cited the cost of using overtime
and agency employees rather than regular employees to per-
form the work of the strikers.
On December 31, 1999, Harper sent a confidential memo-
randum to the Respondent’s board of directors regarding the
status of negotiations and the strike. In this memo, Harper in-
forms the directors of the upcoming meeting on January 3 with
the Union and the mediator. He predicts only limited movement
from the Union at this meeting, because Brown
[R]emains in the mode of bringing a handful of strikers to
each meeting. In their presence, he seizes the opportunity to
grandstand with his no compromise social justice message
and threat of a long-term strike.
. . . .
However, while he postures and schedules meetings a week
apart, we are making progress.
Harper then listed eight items of “progress” in such areas as
quality and consistency of service to residents, employee mo-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1330
rale, state oversight and admission of new residents. The last
three address the issue of permanent replacements as follows:
6. As a well-executed event the day before Christmas,
we began to permanently replace striking workers at
Avery. These new employees have some distinct advan-
tages: they are pleased to have the job for the money that
we currently pay; they have fine work ethics; they want to
learn; they are less expensive than temporary workers; and
they bring predictable stability for the future, when the
strike is over, because they say they want to work here for
a long time. So far, we have hired 104 permanent re-
placements at Avery, replacing 60% of those on strike. If
Mr. Brown refuses to seriously negotiate in good faith, we
plan to add one or more permanent replacements each day.
We have him in a real bind at Avery.
7. We have not yet begun to add permanent replace-
ments at Miller, but the threat is clearly before Mr. Brown.
We also reminded Mr. Brown and the strikers that we are
considering the option of no longer paying for their health
insurance while they are on strike. The objective of the
health insurance tactic was to cause the strikers to gang up
on Mr. Brown and demand that he compromise to achieve
a contract or they will come across the picket line. Yester-
day’s movement at Miller may be evidence that the health
insurance threat, along with our permanent replacement
success at Avery, is working. Remember, the Miller work-
ers are new to the Union and their solidarity commitment
is not nearly as solid as at Avery Heights. It could also be
said that we have Mr. Brown in a real bind at Miller.
8. Remember, this Union has no strike fund except for
the few members that put in 40 hours a week on the picket
line. They receive $100. Depending upon their shift differ-
ential status, these workers have become accustomed to
earning between $487 and $580 per week. Because of this
disparity, we know that some former workers here aban-
doned the strike and have obtained employment else-
where.
Harper acknowledged drafting this memo for the Respondent’s
directors. Cloherty testified that he was not aware of Harper’s
memo until sometime after it was sent to the board of directors.
3. Analysis and conclusions
a. The alleged December 15 misrepresentation as a violation of
Section 8(a)(5)
The complaint alleges that Harper’s statement to Brown at
their December 15, 1999 meeting, that the Respondent had no
intentions of hiring permanent replacements for the strikers,
constituted an unlawful misrepresentation in violation of Sec-
tion 8(a)(5) of the Act. The Respondent has not only denied this
allegation on the merits, but has asserted that the allegation is
barred by Section 10(b) of the Act because it was not specifi-
cally included in the original charge that was filed within 6
months of the incident. The General Counsel acknowledges that
this specific allegation first appears in the amended charge that
was filed by the Union on July 31 and served on the Respon-
dent on August 7, but argues that it is “closely related” to the
allegations of the original charge under the Board’s decision in
Redd-I, Inc., 290 NLRB 1115, 1118 (1988).
The Board applies a three-part test to determine whether the
allegations of an amended charge are closely related to those in
an original charge to survive Section 10(b) of the Act. The
Board first determines whether the otherwise untimely allega-
tions involve the same legal theory as the allegations in the
timely filed charge. Next, the Board looks at whether the oth-
erwise untimely allegations arise from the same factual circum-
stances or sequence of events as those in the timely charge.
Finally, the Board may consider whether a respondent would
raise similar defenses to the allegations. Nickles Bakery of
Indiana, 296 NLRB 927, 928 (1989), citing Redd-I, supra. Al-
though Nickles and Redd-I involved the relatedness of a com-
plaint allegation to a charge, the Board has held that the same
test applies for determining whether otherwise time-barred
allegations in an amended charge relate back to allegations in
an earlier timely filed charge. Ross Stores, Inc., 329 NLRB 573
fn. 6 (1999). See also Office Depot, 330 NLRB 640 fn. 4
(2000).
Applying the above test to the facts here, I find that the alle-
gation of the complaint and amended charge that the Respon-
dent bargained in bad faith in violation of Section 8(a)(5) by
misrepresenting its intentions regarding the hiring of permanent
replacements is closely related to the Section 8(a)(1), (3), and
(5) allegations in the original timely filed charge. The charge,
as originally filed, alleged, inter alia, that the Respondent vio-
lated Section 8(a)(5) as well as Section 8(a)(1) and (3) by hiring
permanent replacements and refusing to reinstate all striking
employees upon the Union’s unconditional offer to return to
work. The original charge also contained a general Section
8(a)(5) failure to bargain in good-faith allegation. The allega-
tions in the complaint and amended charge involve the same
legal theory as those in the original charge because they place
in issue whether the Respondent fulfilled its duty to bargain in
good faith by hiring permanent replacements and misleading
the Union about this, leading to the employer’s refusal to rein-
state all the strikers in January. Moreover, the timely and alleg-
edly untimely allegations involve “acts that are part of the same
course of conduct, such as a single campaign against a un-
ion…or part of an overall plan to resist organization.” Ross
Stores, Inc, supra and cases cited therein. Under the General
Counsel and the Charging Party’s theory of the case, Harper’s
December 15 misrepresentation was part of the Respondent’s
scheme to unlawfully deny reinstatement rights to a majority of
the strikers. Thus, the allegations of the amended charge, as
well as those in the original charge, arose out of the same se-
quence of events, i.e., the Respondent’s response to its employ-
ees exercise of their right to strike in support of the Union’s
contract demands. The investigation of the Union’s original
charge would logically entail a review of the parties’ collective-
bargaining negotiations which preceded the strike and any
meetings or communications during the strike, such as Brown’s
December 15 meeting with Harper. In fact, Harper conceded
that he was asked about this meeting in May, while Union’s
original charge was being investigated. It is therefore undis-
puted that this specific allegation was presented to the Respon-
dent during the investigation of the original charge, even before
AVERY HEIGHTS 1331
the amended charge specifically mentioned it. Accordingly, I
find that this allegation is not barred by Section 10(b) of the
Act and shall reject the Respondent’s affirmative defense.
A determination of the merits of the charge requires resolu-
tion of a conflict in the testimony of Brown and Harper. Harper
was as certain that he gave no assurances to Brown as Brown
was certain that he did. There was nothing apparent in the de-
meanor of Brown or Harper that would suggest that either was
testifying falsely. The mere fact that Brown gave a more de-
tailed account of the meeting does not mean he was more truth-
ful. This meeting occurred 15 months before the witnesses
appeared at the hearing and neither had made or retained any
notes of their conversation. Under these circumstances, it is not
surprising that Harper’s recollection of the details of the meet-
ing would not be very precise. It is also not unfathomable that
someone would have a specific recollection as to one subject
while not recalling other matters. At the same time, Brown’s
almost verbatim recitation of the conversation, so long after it
occurred, was surprising in view of his acknowledgement that
he retained no contemporaneous notes to review before testify-
ing. What I find even more surprising is the fact that Brown
made no mention of Harper’s commitment not to hire perma-
nent replacements when he learned that the Respondent was in
fact doing so. Brown explained his failure to confront Harper
about this misrepresentation by testifying that it was only his
word against Harper and he did not want to get into a “he said,
she said” dispute. Although this explanation is plausible, it is
not consistent with Brown’s behavior during meetings with
Harper in January. While reluctant to confront Harper about
this serious misrepresentation, he did confront Harper regarding
two other statements Harper made during their December 15
meeting. When the Respondent rejected Brown’s proposal for a
4-year contract, Brown didn’t hesitate to remind Harper that he
had said, on December 15, that the Union would agree to a 4-
year contract in nine weeks. Similarly, when Cloherty ex-
pressed surprise at Brown’s proposal for an extended duration
with a reopener and binding arbitration, Brown questioned
Harper whether he had communicated this offer to Cloherty
when Brown first made it at the December 15 meeting. I have
similar doubts about Harper’s credibility. Harper’s rather vague
testimony about his conversations with Brown in general does
not provide much confidence in the reliability of his convenient
denial that he made this damaging statement. I also note that a
deliberate misrepresentation as described by Brown would be
consistent with the “pre-Christmas surprise” that Harper was so
proud of in his memo to the Respondent’s directors.
Having considered the above factors, and while not entirely
free from doubt, I find that Harper’s denial is more credible
than Brown’s testimony that Harper told him the Respondent
had no intention of hiring permanent replacements. Brown may
sincerely believe now that he heard such a commitment from
Harper on December 15, 1999. His actions in the period soon
after the meeting, however, when such a commitment would
have been a critical piece of evidence against the Respondent’s
hiring of permanent replacements, convince me that the state-
ment was not made by Harper. Because I find that Harper did
not tell Brown on December 15, 1999, that the Respondent had
no intention or plans to hire permanent replacements, there was
no “misrepresentation.” Accordingly, I must recommend dis-
missal of this allegation of the complaint.
b. The Respondent’s hiring of permanent replacements for
the economic strikers as a violation of
Section 8(a)(1) and (3)
The complaint alleges that the Respondent began hiring
permanent replacements for its striking employees on Decem-
ber 15, 1999, because “the employees joined and assisted the
Union and engaged in concerted activities, and to discourage
employees from engaging in these activities.” The General
Counsel argues that because the Respondent had an independ-
ent discriminatory motive for permanently replacing the strik-
ers, its otherwise lawful conduct violated Section 8(a)(3) of the
Act. The complaint further alleges that the Respondent violated
Section 8(a)(3) by failing and refusing to reinstate any of the
striking employees in response to the Union’s January 5 offer
to return to work, and by failing and refusing to reinstate all of
the striking employees in response to the Union’s January 20
offer.
The Board recently reaffirmed the long-standing principals
governing cases such as this one:
It is well established that an employer’s discouragement of
employee participation in a legitimate strike constitutes dis-
couragement of membership in a labor organization within
the meaning of Section 8(a)(3). See NLRB v. Great Dane
Trailers, 388 U.S. 26, 32 (1967) (citing NLRB v. Erie Resistor
Corp., 373 U.S. 221, 233 (1963)). It is also evident that an
employer’s refusal to reinstate striking employees would tend
to discourage employee participation in a strike effort. Ac-
cordingly, well-settled precedent dictates that an employer
will be held to violate Section 8(a)(3) and (1) of the Act if it
fails to immediately reinstate striking workers on their uncon-
ditional offer to return to work, unless the employer can estab-
lish a “legitimate and substantial business justification” for its
failure to do so. See NLRB v. Fleetwood Trailer Co., 389 U.S.
375, 378 (1967). The employer bears the burden of proving
the existence of such a legitimate and substantial business jus-
tification. Id.
But, even if an employer does present sufficient evi-
dence to demonstrate the requisite business justification,
that is not the end of the inquiry. Thus, if the Board finds
that an employer’s conduct is “inherently destructive of
employee rights,” no proof of antiunion motive is needed,
and the Board may find an unfair labor practice notwith-
standing that the employer was motivated by business
considerations. In contrast, if the adverse effect of the em-
ployer’s conduct on employee rights is “comparatively
slight,” an antiunion motive must be proved to sustain an
8(a)(3) charge if the employer has presented evidence of a
legitimate and substantial business justification. Great
Dane Trailers, 388 U.S. at 33–34.
Capehorn Industry, Inc., 336 NLRB 364, 365 (2001).
In Capehorn, the Board found that the employer’s refusal to
reinstate economic strikers was unlawful because the employer
did not satisfy its burden of proving a legitimate and substantial
business justification. The employer had contended that perma-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1332
nent replacements had been hired for some of the strikers and
that the work of other strikers had been permanently subcon-
tracted. While reaffirming the principal that an employer’s
permanent replacement of economic strikers as a means of
continuing its business operations would be a legitimate and
substantial business justification for refusing to reinstate the
strikers, the Board concluded that the employer had not met its
burden of proving that the replacements it hired were indeed
permanent.23 Id. The Board found further that the employer had
not satisfied its burden of establishing that it had any business
justification for permanently subcontracting unit work during
the strike. Because the employer had not met its burden, the
Board found it unnecessary to determine, under Great Dane, the
extent to which the employer’s conduct adversely affected em-
ployee rights. The Board instead analyzed the employer’s con-
duct as if it had a “comparatively slight” impact on employee
rights. Id. The Board’s decision in Capehorn does not appear to
disturb precedent, such as Hot Shoppes, supra, which holds that
an employer’s motive for hiring permanent replacements is es-
sentially “irrelevant” in the absence of evidence of an independ-
ent unlawful motive. See also Belknap v. Hale, 463 U.S. supra at
504 fn. 8.
The following analytical framework can be gleaned from the
decisions in Fleetwood Trailer, supra, Hot Shoppes, supra, and
Capehorn Industry, supra. If the General Counsel establishes as a
fact that the employer has failed or refused to reinstate economic
strikers upon an unconditional offer to return, the Board will infer
a discriminatory motive because of the natural tendency of such
conduct to discourage employees from supporting a union during
a strike. However, the employer can avoid an unfair labor prac-
tice finding by presenting evidence of a “legitimate and substan-
tial business justification” for its failure or refusal to reinstate the
strikers. An employer who establishes that it has hired permanent
replacements to fill positions left vacant by the strikers will be
deemed to have presented a legitimate and substantial business
justification without further scrutiny. See Chotaw Maid Farms,
308 NLRB 521, 528 (1992); Waterbury Hospital, 300 NLRB
992, 1006 (1990), enfd. 950 F.2d 849 (2d Cir. 1991).24 In order
to establish an unfair labor practice at that point, under Hot Shop-
pes, the General Counsel would have to present sufficient evi-
dence to show that, in hiring permanent replacements, the em-
ployer had “an independent unlawful motive.” To date, the Board
has never found such a situation to exist. In those few cases
where an administrative law judge has found evidence of an in-
dependent unlawful motive, the Board has expressly declined to
adopt those findings and either reversed the judge, as it did in Hot

23 The General Counsel does not contend that the replacements hired
by the Respondent on and after December 15, 1999, were not “perma-
nent.” The complaint and his theory of the case conceded that point.
Moreover, the evidence in the record, including testimony from two
replacement employees called as witnesses by the General Counsel, is
sufficient to establish their status as permanent replacements.
24 To the extent the Court would impose a heavier burden on the em-
ployer to justify the use of permanent replacements, the Board has
never accepted this view. I am constrained to follow the Board’s inter-
pretation of the Act until it is reversed by the Supreme Court. Los An-
geles New Hospital, 244 NLRB 960, 962 fn. 4 (1979), enfd. 640 F.2d
1017 (9th Cir. 1981).
Shoppes, or chosen an alternative basis for finding an unfair labor
practice. Nicholas County Health Care Center, 331 NLRB 970
(2000); Pennsylvania Glass Sand Corp., 172 NLRB 514 fn. 3
(1968). Under the Hot Shoppes analysis, if the General Counsel
succeeded in proving the existence of an independent unlawful
motive, presumably the burden would shift back to the Respon-
dent to prove affirmatively that it had a legitimate and substantial
business justification for choosing to continue operations with
permanent replacements rather than by some other means. The
Board has never gone this far in any case involving economic
strikers.
Assuming the General Counsel presents evidence of an inde-
pendent unlawful motive and the employer presents evidence to
show it had a legitimate and substantial business justification, the
question arises as to which party should have the burden of prov-
ing which motive prevailed. The General Counsel suggests that
this case and the Hot Shoppes exception can be analyzed under
the Board’s Wright Line test for determining motivation.25 Under
this analysis, if the General Counsel establishes by a preponder-
ance of the evidence that protected activity was a motivating
factor in the employer’s decision, then the burden would shift to
the employer to prove that it would have taken the same action in
the absence of such activity. That would be an unattainable bur-
den in a strike situation because the employer would not have had
to make a decision whether to hire permanent replacements in the
absence of the employees having exercised their Section 7 right
to strike. I believe it is more appropriate to leave the ultimate
burden on the General Counsel to show that the independent
unlawful motive outweighed any legitimate and substantial busi-
ness that the employer may have had.
There appears to be no dispute here that the Union’s January
20 offer was, as it appears on its face, an unconditional offer
sufficient to trigger the Respondent’s obligation to reinstate the
strikers absent a legitimate and substantial business justification.
Because the record shows that the Respondent hired 23 perma-
nent replacements between January 5 and 20, it must be deter-
mined whether the Union’s earlier offer was unconditional. The
Board has held that any request for reinstatement during an eco-
nomic strike that is conditioned upon removal of the cause of the
strike is not an unconditional offer. Atlanta Daily World, 192
NLRB 159 (1971). Where the parties are bargaining for a new
contract and the Union offers to return to work under the terms
and conditions of the expired contract, the offer is not uncondi-
tional. McAllister Bros., 312 NLRB 1121, 1123 (1998). In addi-
tion, by demanding that all employees be reinstated, where some
strikers had been permanently replaced, the Union was also im-
posing a condition which would limit the effectiveness of its
offer. Unless it is found that the hiring of these permanent re-
placements was unlawful, the Union’s January 5 offer would not
be an unconditional offer. Cf. NFL Management Council, 309
NLRB 78, 80 fn. 11 (1992).
The Respondent here satisfied its initial burden of establishing
a legitimate and substantial business justification for failing to
reinstate all the strikers in response to either union offer by show-
ing that it had hired permanent replacements beginning on De-

25 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
AVERY HEIGHTS 1333
cember 15, 1999. The General Counsel argues that, notwithstand-
ing this legitimate and substantial business justification, there is
other evidence that the Respondent had an “independent unlawful
motive” for exercising its right to permanently replace striking
employees. The General Counsel relies to a great extent on the
alleged misrepresentation at the December 15, 1999 meeting
where it is claimed that Harper deliberately lied about the Re-
spondent’s plans. I have already found, based on credibility, that
Harper did not make the representation attributed to him by
Brown and therefore, did not lie to the Union about its decision.
However, the Respondent admits that it consciously concealed its
decision to hire permanent replacements from the Union. The
secretive nature of the Respondent’s conduct is another piece of
evidence relied on by the General Counsel. The General Counsel
also relies upon Harper’s December 31, 1999 memo to the Re-
spondent’s board of directors as proof of the true purpose behind
the Respondent’s secret plan. Finally, the General Counsel at-
tempted to show that the asserted business justification for the
Respondent’s decision was a pretext.
I find that the General Counsel has presented sufficient evi-
dence that the Respondent had an independent unlawful motive
when it decided, on or about December 15, 1999, to permanently
replace its striking employees. It is undisputed that the Respon-
dent made a conscious decision to keep its decision a secret.
Thus, even if Harper did not lie about the Respondent’s plans, he
and the other management officials went out of their way to con-
ceal the Respondent’s hiring plans from the Union. The Respon-
dent argues that the Board has never required an employer to
notify a Union or the striking employees when it is considering
hiring permanent replacements for strikers. The cases cited by the
Respondent are administrative law judge decisions adopted by
the Board without comment. Armored Transfer Service, Inc., 287
NLRB 1244, 1251 fn. 21 (1988); American Cyanamid Co., 235
NLRB 1316, 1323 (1978). The Board has never expressed an
opinion one way or the other regarding what obligation, if any, an
employer has to notify the Union in advance. The Board has
required notice to be given in the analogous situation where an
employer chooses to exert pressure on the Union during negotia-
tions by locking out its employees. Ancor Concepts, Inc., 323
NLRB 742 (1997), citing Eads Transfer, Inc., 304 NLRB 711
(1991). The employer’s right to hire permanent replacements in
the face of a strike and its right to lock out employees in support
of its bargaining position have both been recognized as economic
weapons in the employer’s arsenal during a strike. As such, they
must serve the purpose for which they have been sanctioned. The
right to hire permanent replacements has been sanctioned as a
legitimate means for the employer to continue operations during
a strike, not as a punitive measure. See Thurston Motor Lines,
Inc., 166 NLRB 862 (1967). An employer who hires permanent
replacements in secret, without affording the strikers an opportu-
nity to abandon the strike and return to their jobs while still va-
cant, may be motivated not by legitimate business considerations,
but by a desire to punish the strikers by effectively terminating
them.
The Respondent’s witnesses testified that they made the deci-
sion to conceal their plan to hire permanent replacements from
the Union out of fear that the Union would engage in harassment
and other misconduct to impede its efforts to recruit permanent
replacements. The only evidence in support of this claim was
hearsay. Although there was a police presence throughout the
strike and videotape evidence of supposedly inappropriate con-
duct on the picket line, the record here is devoid of police reports,
tapes, or any other evidence to show that the Respondent had a
good faith concern that it would not be able to hire permanent
replacements in sufficient numbers to continue operations if the
Union was aware of its plans. I find credible the testimony of
Brown that, had the Union been made aware of the Respondent’s
plans in advance, it might have decided to end the strike and
return to work rather than risk the employees’ jobs being lost to
permanent replacements. In fact, this is exactly what happened
when the Union learned that the Respondent had already begun
hiring permanent replacements, i.e., the Union held a meeting
and recommended that the employees return to work.26
Even assuming the evidence was sufficient to establish that the
Respondent had a reasonable concern that would justify its acting
in secret, there is other evidence in the record that establishes
convincingly that the Respondent’s true motive was to punish the
strikers. Harper plainly conveyed to his Board of Directors what
motivated him to change the Respondent’s strategy of using tem-
porary employees, volunteers and nonunit staff to continue opera-
tions. The memo makes no mention of union harassment interfer-
ing with the Respondent’s ability to find replacements. Rather,
Harper describes his pre-Christmas surprise as a strategic move
to break the solidarity of the union employees at Avery and put
pressure on the leadership at both Avery and Miller to acquiesce
to the Respondent’s bargaining position. The purpose of keeping
the plan a secret is clear, i.e., to ensure that the Respondent could
replace a majority of the unit before the Union found out. This is
exactly what McAllister told Cohen when she told him to keep
secret their negotiations for the conversion of his temporary em-
ployees to permanent employees of the Respondent. Further
evidence of the Respondent’s independent unlawful motive in
hiring permanent replacements is the fact that it continued to hire
such replacements after its secret was revealed at the January 3
meeting and even after the Union had expressed a desire to end
the strike on January 5.
The testimony of the Respondent’s witnesses, Harper and Dr.
Parker, is not sufficient to rebut the clear evidence of an unlawful
motive found in Harper’s December 31 memo. While the Re-
spondent may indeed have been concerned about continuity of
care, employee burnout and the cost of using temporary employ-
ees, it was Harper’s desire to break the Union’s solidarity by
replacing a majority of the unit that comes through clearly in his
memo. I note that the Respondent had previously, in 1995,
weathered a 5-week strike immediately before the Christmas
holidays without having to resort to the use of permanent re-
placements and that it was apparently able to continue operations
at Miller Memorial during the same period in December 1999
without the need to hire permanent replacements. Harper’s memo

26 The testimony of Attorney Psarakis does not establish that the Un-
ion knew that the Respondent was already hiring permanent replace-
ments on December 22. I find that, at best, Brown expressed to Psarakis
his suspicions that this was happening based on the information he had
available. Psarakis admittedly did not confirm these suspicions.
Brown’s suspicions were not confirmed until the January 3 meeting at
FMCS.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1334
also shows that the Respondent’s strategy of hiring permanent
replacements was intended to convey to the striking employees at
Miller, “who are new to the Union and [whose] solidarity com-
mitment is not nearly as solid as at Avery Heights” the threat that
they could also lose their jobs if they did not abandon the Union.
Harper’s reference to the loss of wages for the strikers at Avery is
further proof of the punitive nature of the Respondent’s plan.
Accordingly, I find that the General Counsel has established,
through Harper’s December 31, 1999 memo, McAllister’s state-
ments to Cohen in mid-December 1999 and the deliberate con-
cealment of its plans from the Union that the Respondent had an
“independent unlawful motive “for hiring permanent replace-
ments for the strikers. I find further, again based primarily on
Harper’s statements in his memo, that this unlawful motive out-
weighed the business justifications advanced for the hiring of
permanent replacements here. My finding here is not intended to
undermine an employer’s recognized right to continue operations
in the face of an economic strike by hiring permanent replace-
ments. My finding is based on the unique facts presented here
where Harper’s memo amounts to the “smoking gun” rarely seen
in unfair labor practice cases. As the General Counsel argues in
his brief, if this case does not fit the Board’s language in Hot
Shoppes, supra, then the phrase “absent evidence of an independ-
ent unlawful motive” is truly meaningless and should be ex-
pressly overruled by the Board.
Based on the above, I find that the Respondent has violated
Section 8(a)(3) of the Act, as alleged, by failing and refusing to
reinstate the economic strikers, including those whose positions
had been filled by permanent replacements who were hired in
order to punish the employees for showing their support for the
Union during the strike. Because the Union’s January 5 offer was
conditioned on the maintenance of the terms and conditions of
the expired contract, the Respondent’s failure to reinstate striking
employees in response to that offer was not unlawful. The unfair
labor practice occurred when the Respondent failed and refused
to reinstate all the strikers in response to the Union’s January 20
unconditional offer.
CONCLUSIONS OF LAW
1. By terminating Patricia Hurdle and Georgia Stewart on
January 26, 2000, and by terminating Opal Clayton and Pauline
Taylor on February 22, 2000, because of their protected activities
in support of the Union, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
2. By failing and refusing, since January 20, 2000, to reinstate
its striking employees, upon their unconditional offer to return to
work, the Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the Act.
3. The Respondent did not violate Section 8(a)(5) of the Act,
on December 15, 1999, by misrepresenting its intentions regard-
ing the hiring of permanent replacements.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectuate
the policies of the Act. In order to remedy the unlawful termina-
tions of Clayton, Hurdle, Stewart, and Taylor, the Respondent
must offer them reinstatement and make them whole for any loss
of earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). I shall also
recommend that the Respondent be ordered to expunge from its
records any reference to the employees’ unlawful terminations
and to notify them that this has been done.
Because the Respondent unlawfully failed and refused to rein-
state all the striking employees in response to the Union’s Janu-
ary 20 unconditional offer to return to work, it must now reinstate
all strikers who have not yet been reinstated, discharging if nec-
essary any permanent replacements hired during the strike. The
Respondent must also make the striking employees whole for any
loss of earnings and other benefits as described above. This
would include making those strikers, whose reinstatement was
delayed because a permanent replacement occupied their position
on January 20, whole for any wages and benefits lost from Janu-
ary 25, 2000, to the date they were in fact reinstated.27 The iden-
tity of those employees entitled to reinstatement under this Order,
the precise date on which individual employees would have been
reinstated, absent the Respondent’s unlawful conduct, and the
amount of backpay required to make each employee whole will
be left for determination at the compliance stage of this proceed-
ing.
In his complaint, the General Counsel requested as a special
remedy an order further requiring the Respondent to reimburse
any employee entitled to a monetary award in this case for any
extra Federal and/or State income taxes that might result from a
lump sum payment of the award. Counsel for the General Coun-
sel has not explained why such an extraordinary remedy is neces-
sary in this case. In the absence of any showing that such a rem-
edy is necessary to effectuate the purposes and policies of the
Act, I decline to recommend this additional relief.
[Recommended Order omitted from publication.]

27 January 25 is the date the first strikers were reinstated in response
to the Union’s January 20 offer.