Boghosian Raisin Packing Co.

National Labor Relations Board - Board Decisions

Jun 30, 2004

342 N.L.R.B. 383 (N.L.R.B. 2004)

BOGHOSIAN RAISIN PACKING CO.
342 NLRB No. 32
383
Boghosian Raisin Packing Company, Inc. and Pack-
ing House Employees and Warehousemen’s Un-
ion, Local 616 a/w International Brotherhood of
Teamsters, AFL–CIO. Cases 32–CA–17721–1,
32–CA–17839–1, and 32–CA–17985–1
June 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND SCHAUMBER
On October 31, 2000, Administrative Law Judge
James L. Rose issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
further discussed below, and to adopt the recommended
Order.
The primary issue in this case is whether the Respon-
dent violated Section 8(a)(3) and (1) of the Act by refus-
ing to reinstate 42 economic strikers and violated Section
8(a)(5) and (1) by subsequently withdrawing recognition
from their collective-bargaining representative and
changing terms of employment. We find, in agreement
with the judge, that the Respondent was not required to
reinstate the strikers because the strikers had, under the
express language in the loss-of-status provision of Sec-
tion 8(d), lost their protected status as employees under
the Act by reason of their Union’s failure to file a notice
with the Federal Mediation and Conciliation Service
(FMCS) as required by Section 8(d)(3).2 We find further

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
2 Sec. 8(d) provides, in relevant part:
[W]here there is in effect a collective-bargaining contract . . . the duty
to bargain collectively shall also mean that no party to such contract
shall terminate or modify such contract, unless the party desiring such
termination or modification—
(1) serves a written notice upon the other party to the contract
of the proposed termination or modification sixty days prior to the
expiration date thereof, or in the event such contract contains no
expiration date, sixty days prior to the time it is proposed to make
such termination or modification;
. . . .
(3) notifies the Federal Mediation and Conciliation Service
within thirty days after such notice of the existence of a dispute,
that subsequently the Respondent lawfully withdrew rec-
ognition from the Union based on a petition signed by an
uncoerced majority of the unit employees, and changed
their terms of employment.
I. MATERIAL FACTS
The Union represented the Respondent’s processing,
handling, and packing employees from 1970 until the
time of the strike at issue. The most recent agreement
between the parties expired by its terms on May 31,
1999.3 By letter dated January 26, the Union notified the
Respondent that it desired to terminate the contract. On
February 19, the Union sent notice of the pending dispute
to the California Mediation and Conciliation Service
(CMCS) as mandated under Section 8(d)(3). Although
the Union’s secretary-treasurer, George Avalos, prepared
a similar notice to the FMCS, as mandated by Section
8(d)(3), that notice was not mailed due to a clerical error
within the union offices.
The parties held a number of bargaining sessions be-
tween January and June. On June 3, they agreed to ex-
tend the expired contract pending further negotiations.
The extension agreement permitted either party to termi-
nate the agreement on 7 days written notice. Negotia-
tions continued through September, but the parties re-
mained far apart in their bargaining proposals.
On September 22, the unit members voted to reject the
Respondent’s “last, best, and final” offer, and on Sep-
tember 24 the Union notified the Respondent that it was
terminating the extension agreement as of October 1.
Also on September 24, Avalos completed a Teamsters
Joint Council questionnaire concerning the contract dis-
pute and instructed his secretary to mail it to the Joint
Council. The questionnaire specifically asked whether
notice of the dispute had been sent to the FMCS and the
state mediation service as required by Section 8(d)(3).
The questionnaire further directed the local to “attach
copies of the return receipts” (emphasis in original) for

and simultaneously therewith notifies any State or Territorial
agency established to mediate and conciliate disputes within the
State or Territory where the dispute occurred, provided no agree-
ment has been reached by that time; and
(4) continues in full force and effect, without resorting to
strike or lockout, all the terms and conditions of the existing con-
tract for a period of sixty days after such notice is given or until
the expiration date of such contract, whichever occurs later. . . .
28 U.S.C. § 158(d).

Sec. 8(d) also includes a “loss of status” provision, which states in
relevant part:
Any employee who engages in a strike within any notice period speci-
fied in this subsection . . . shall lose his status as an employee of the
employer engaged in the particular labor dispute, for the purposes of
sections 8, 9, and 10 of this Act. . . . Id.
3 All dates hereafter are in 1999, unless otherwise specified.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384
such notices. Without taking any action to verify that the
required notice had been sent, or that return receipts con-
firmed delivery, Avalos signed the form, indicating that
the 8(d)(3) notices had been sent.4 At the hearing,
Avalos conceded that he did not then, or at any other
time prior to the strike, look for a return receipt to con-
firm that the FMCS notice had been sent. He candidly
admitted that his failure to ensure that the FMCS notice
had been sent was “based on the fact that [he] just didn’t
know the legal significance of . . . mailing it.” He con-
ceded further, regarding the Joint Council questionnaire,
“We weren’t familiar with it, because I had never done it
myself.”
The Respondent was unaware of any action by the Un-
ion with regard to notifying or intending to notify FMCS
as required by Section 8(d)(3). Upon receiving the Un-
ion’s September 24 notice terminating the extension
agreement, the Respondent’s attorney, Howard Sagaser,
contacted the FMCS and the CMCS to determine
whether the Union had filed the required 8(d)(3) notices.
He was informed by both agencies that the Union had not
filed 8(d)(3) notices.5 The parties held their final bar-
gaining session on September 30, before the expiration
of the extension agreement, but remained far apart at the
end of that session. Union officials then began making
active preparations for a strike.
On the morning of October 1, employees reported for
work at their regular time and began work. At about
7:15 a.m., however, they ceased production, walked out,
and set up a picket line. The record indicates that before
walking out the employees cleaned up their work areas
as they would have done before going on a short break,
but not as was customary for a thorough nightly cleaning
to prevent spoilage. As a result, they left a quantity of
raisins exposed to spoilage. The judge found that the
resulting product damage was intentional.
At 7:50 a.m., Sagaser telephoned Avalos on the picket
line to inform him that the strike was illegal because the
Union had not sent its required notice to the FMCS. Af-
ter speaking with the Union’s attorney, Avalos returned
to the Union office to determine whether the FMCS no-
tice had been sent. At approximately 1 p.m., he con-
firmed that the original copy of the notice remained in
the Union’s files and that there was no return receipt in-
dicating it had been mailed. Later that day the Union

4 The Respondent was not aware of the Union’s written notice to the
Joint Council before the strike.
5 The record reflects that the Union did file the required 8(d)(3) no-
tice with the CMCS in Fresno, even though Sagaser was initially ad-
vised by the San Francisco office (the agency’s state headquarters) that
no notice had been filed. On October 1, Sagaser learned that the state
notice had been filed in Fresno.
made an oral offer, through its counsel, to return all em-
ployees to work under status quo terms and conditions of
employment and resume negotiations for a new contract
provided that the Union could not find a copy of the
FMCS notice. The Union did not, however, take any
other action to end the strike although it was clear that no
later than 1 p.m. on October 1, it had full knowledge that
the statutorily required FMCS notice had not been
mailed. The strike, thereafter, continued for 4 additional
days.
On October 2, the parties met but failed to resolve the
dispute. Sagaser stated that the Respondent was “reserv-
ing all options . . . up to and including discharge” of all
the strikers. On October 4, the Union again offered to
end the strike under status quo terms of employment and
continue negotiations. The Respondent responded in
writing, through Sagaser, that it still reserved its right to
terminate all the strikers and would do so unless the Un-
ion provided documentation the following day “that the
strike is legal.”
On October 5, the Union sent a written offer to return
to work “on the basis of the Company’s last, best and
final offer at the bargaining table.” Later that day, the
Respondent sent individual notices to each of the strikers
stating that “you abandoned your workstation and en-
gaged in an illegal strike” and that “[t]herefore, the
Company has elected to terminate your employment.”
The Respondent then hired new employees.
In January 2000, 35 of the employees who were then
in the bargaining unit signed a petition stating that they
no longer wanted representation by the Union. On Feb-
ruary 2, 2000, the Respondent withdrew recognition of
the Union. The Respondent subsequently made a num-
ber of changes in terms and conditions of employment.
II. ANALYSIS
A. The Strikers’ Loss of Protected Status
Under Section 8(d)
Section 8(d) of the Act expressly requires that before a
union can engage in a strike it must give written notice to
the employer of its intent to modify or terminate the
agreement and to the FMCS and any relevant state me-
diation agency of its intent to strike. These provisions
are mandatory and contain a severe penalty for failure to
comply: employees who engage in a strike without the
requisite notices being given forfeit their status as em-
ployees “of the employer engaged in the particular labor
dispute.” These provisions are a clear expression of
Congressional intent to minimize the interruption of
commerce resulting from strikes and to further the use of
mediation to assist parties in settling their labor disputes
peaceably.

BOGHOSIAN RAISIN PACKING CO. 385
There is no dispute here that the Union failed to file
the required notice with the FMCS before commencing
an economic strike. Moreover, even after the Union
knew full well that the notice had not been sent, it said
that it would end its unlawful strike only if the status quo
in terms and conditions of employment were main-
tained.6 Four days later, the Union said that it would end
the strike only under the terms and conditions last of-
fered by the Respondent. Thus, for this period the Union
continued its unlawful strike, and the strikers lost their
status as statutory employees. The Respondent could
therefore discharge them.7
It is true that enforcement of these statutory provisions
may in some circumstances yield a harsh result. The
dissent argues that this is such a case. We do not disagree
in that the Union’s initial failure to comply was not de-
liberate, and the strikers did not participate in the Un-
ion’s negligence. Nonetheless, the forfeiture provisions
apply. The statute provides a clear mandate that we are
obligated to respect and enforce. These notice require-
ments are part of the overall statutory scheme intended to
encourage the peaceful resolution of labor disputes.
While the statute may in some instances yield severe
consequences, it is the Congress that made that determi-
nation, and it is our obligation to obey this legislative
demand.
Our dissenting colleague, in focusing on the Respon-
dent’s allegedly improper conduct, largely ignores the
Union’s failure to meet its obligations and its persistence
with the strike after learning of its error. Although the
immediate cause of the Union’s failure to file the FMCS
notice was an error by a clerical employee, it was the
Union that employed that clerical employee, and it was
the union secretary-treasurer who failed to supervise the
clerical employee’s performance of this important func-
tion. Likewise, it was this same senior union official
who signed internal union documents affirming that the
FMCS notice had been mailed without: checking to con-
firm that it had in fact been mailed; verifying that he had
the return receipt; or contacting FMCS to determine
whether the notice had been received. In short, the Un-
ion was negligent. Just as the employees may enjoy the

6 Our dissenting colleague notes that there had been no lawful impo-
sition of new terms, and thus the strikers were unconditionally “enti-
tled” to return under the extant terms. We disagree. Inasmuch as the
strike was unlawful under Sec. 8(d), and the strikers had lost their em-
ployee status, the strikers were not “entitled” to return at all irrespective
of the conditions. Of course, should the employer accept their offer to
return to work (effectively foregoing its 8(d) position), then and only
then would it have to offer them work under the extant terms, absent a
lawful impasse and unilaterally implemented new terms.
7 Fort Smith Chair Co., 143 NLRB 514 (1963), affd. 336 F.2d 738
(D.C. Cir. 1964), cert. denied 379 U.S. 838 (1964).
benefits of competent union representation, so too the
employees may suffer the consequences of negligent
union representation. In addition and very significantly,
as mentioned above, after learning of its error, the Union
failed to unconditionally cease and desist from its unlaw-
ful actions.
Our dissenting colleague argues that the Respondent
was not entitled to rely on 8(d)’s loss-of–status provision
because it acted in bad faith by concealing from the Un-
ion its critical knowledge, gained in advance of the
strike, that the Union had failed to notify the FMCS. She
emphasizes that the Union erroneously thought the notice
to the FMCS had been sent, and that the Respondent
learned that it had not in fact been sent. We disagree
with her on both the facts and the law.
First, there is no support in the record for inferring that
the Respondent concealed its knowledge for the purpose
of inducing an unlawful strike, or even that the Respon-
dent knew that the Union erroneously believed the notice
had been sent.8 Indeed, as the dissent concedes, Sagaser
testified that he believed, from the absence of the FMCS
notice, that the Union was not going to strike.9 Although
the judge did not address this testimony, absent any tes-
timony to the contrary, we find it strongly supports the
conclusion that the Respondent did not act in bad faith.
Next, quite apart from the facts, our colleague’s posi-
tion is at variance with the plain words of Section 8(d)
and with the clear expression of Congressional intent
evident in those provisions. The notice requirements of
Section 8(d)(3) are specifically assigned: the burden to
notify the mediation services in this case was on the Un-
ion, as “the party desiring [the] termination or modifica-
tion” of the parties’ contract. In this regard, Section 8(d)
contains no exceptions and provides no mitigating cir-
cumstances justifying a failure to comply. It neither
states, nor implies, that the penalties it imposes are de-
pendent upon who may have been “at fault” in failing to
comply. That the Union’s failure to file with the FMCS
was not deliberate but the product of negligence is not
exculpatory. In sum, the statute provides no basis for
exempting the Union and the strikers from the strict re-
quirements of Section 8(d), or from the loss-of-status
sanctions it imposes in the event of infraction.
It follows that a party’s knowledge, understanding, or
intent at a given time, whether before or after a strike

8 Accordingly, the cases cited in the dissent involving an employer’s
misleading conduct during negotiations are clearly inapposite.
9 The fact that the Respondent contacted a security firm before Oc-
tober 1 does not establish that the Respondent knew that a strike would
occur. The Respondent said only that it had concerns about “upcoming
events.” That phrase encompasses a myriad of possible disruptive acts,
not just strikes.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386
begins, cannot affect the operation of Section 8(d)’s loss-
of-status provision with respect to a strike that is unlaw-
ful under Section 8(d)(3) and (4). There is no warrant in
the language of the Act, or its policies, for the dissent’s
conclusion that the Union’s burden of timely notifying
the FMCS, or the consequences for its failure to do so,
were lifted simply because the Respondent did not com-
ment on the absence of the notice. The obligation to no-
tify the FMCS was the Union’s, and there is no basis for
placing any obligation on the Respondent to disclose the
Union’s failure to comply. For this reason, any analysis
of the evidence by our dissenting colleague with respect
to Respondent’s knowledge and intent, and her specula-
tion as to what the Union might have done if it had been
informed of its failure to file an FMCS notice, is immate-
rial to a decision in this case. Here, the sole question is
whether under Section 8(d), the Union, as the party desir-
ing to modify or terminate the agreement, gave the no-
tices prescribed by the Section. If the Union did not, its
failure to do so triggers the loss of status provision and
the inquiry is over.
Our dissenting colleague relies on Mastro Plastics
Corp. v. NLRB, 350 U.S. 270 (1956), to argue that the
Respondent should not be able to avail itself of the 8(d)
loss-of-status provision. She claims that the Respondent
is in the same position as Mastro Plastics, whose unfair
labor practices triggered a strike and that, as the Court
held, there is an “inherent inequity” in an interpretation
of Section 8(d) that “penalizes one party to a contract for
conduct induced solely by the unlawful conduct of the
other.” Id. at 287. Our colleague’s attempts to bring this
case within the dictates of Mastro Plastics are unavail-
ing. In Mastro Plastics, the employers engaged in unfair
labor practices—described as “vigorous efforts by the
employers to influence and even to coerce their employ-
ees to abandon the Carpenters as their bargaining repre-
sentative and to substitute Local 318,” id. at 277—that
triggered the strike. Presented with these circumstances,
the Supreme Court, drawing on the provisions of the leg-
islative history, recognized that the supporters of the bill
distinguished between employees engaged in economic
strikes and those engaged in strikes precipitated by unfair
labor practices. As to the latter, the Court held that to
impose the 60-day cooling off period of Section 8(d)
would in effect give legal sanction to an illegal act.
Thus, Section 8(d) applies to economic disputes and
strikes, not to strikes protesting unlawful conduct. How-
ever, as noted above, once Section 8(d) does apply, the
requirements are strict. The strike in this case was a
purely economic strike, not induced by any unlawful
conduct, but by a disagreement over new contract terms.
In this context, the notice provisions of Section 8(d) ap-
ply, and the kind of “inherent inequity” discussed in
Mastro Plastics is neither present nor a factor. As seen,
there is simply no room in Mastro Plastics for the “equi-
table” interpretation offered by our colleague.
Excusing the Union’s failure to file with the FMCS, by
shifting the blame to the Respondent for its failure to
notify the Union that FMCS may not have been notified,
as the dissent advocates, would undermine the Congres-
sional policy underlying Section 8(d). The statute—
including its loss-of-status provision—is clearly intended
to express the public interest in advance notice to the
mediation agencies, to give them the opportunity to head
off the disruption of an economic strike before it occurs.
The public interest is best served, in our view, by strictly
enforcing the requirements of Section 8(d) as its words
require, and the Respondent’s conduct, even had it been
undertaken in bad faith, as the dissent speculates, would
not justify an exception. As indicated above, the Mastro
Plastics exception to Section 8(d) applies to unfair labor
practice strikes. It is axiomatic that there can be no un-
fair labor practice strike without a finding of an unfair
labor practice, and there can be no such finding without a
complaint allegation. There is no such allegation in this
case.
Our dissenting colleague also contends that the Re-
spondent used the loss-of-status provision improperly as
a “club” to extract additional bargaining concessions.
The Respondent’s obligation to bargain with the Union,
however, did not end with the illegal strike; it was ongo-
ing. Thus, rather than indicating bad faith, as our col-
league suggests, the Respondent’s willingness to con-
tinue bargaining is indicative of its good faith. That the
Union had placed itself in a vulnerable position, in turn,
was not the Respondent’s fault or its responsibility: it
was entitled to press its advantage in negotiations.
Our colleague suggests that the Respondent’s conduct
did not comport with the “good faith” requirement of
Section 8(d). The short answer is that there is no such
allegation in this case. By contrast, the Union’s conduct
after it was informed by the Respondent that its strike
was unlawful only compounded its violation of Section
8(d). Upon acquiring this information, the Union did not
promptly call an unconditional end to the strike and have
the strikers report for work. There is all the less basis for
lenience in view of this continuing misconduct.
Our dissenting colleague also cites ABC Automotive
Products, 307 NLRB 248 (1992), enfd. 986 F.2d 500 (2d
Cir. 1992), in support of her position that the Respondent
waived its right to treat the employees as unprotected
under the Act. In that case, the union timely mailed a 60-
day notice of intent to renegotiate to the employer, pur-
suant to Section 8(d)(1). However, due to a significant

BOGHOSIAN RAISIN PACKING CO. 387
delay caused by the Postal Service, the notice arrived less
than 60 days before the employees began their strike.
The employer not only failed to inform the union that it
had not received a full 60-day notice of their intent to
terminate the contract, it successfully attempted to bait
the Union into striking during the 60-day protected pe-
riod by refusing to make a wage offer and to provide
health and welfare coverage. The Board found that the
employer thereby encouraged its employees to strike less
than 60 days after its receipt of the notice, and concluded
that the employer waived the right to treat the employees
as unprotected. However, ABC Automotive is certainly
distinguishable.
First, unlike the instant case, the failure to give timely
notice in ABC Automotive was due to the fault of a third
party—the post office—and not the Union. Here, due to
the negligence of its staff, the Union never mailed the
required notice to FMCS. Second, due to its cursory
completion of a questionnaire, the Union negligently
failed to discover their omission which a thorough com-
pletion of the questionnaire would have provided.10
Third, and most importantly, the Respondent in the in-
stant case did nothing to actively encourage the Union to
strike in a manner prohibited by Section 8(d) while in
ABC Automotive, the respondent baited the union into an
illegal strike. Last of all, when the Union in the instant
case learned of its mistake, it did not terminate its unlaw-
ful strike immediately with an unconditional offer to re-
turn to work, but allowed it to continue for 4 additional
days.
In summary, we do not agree with our dissenting col-
league that the Respondent violated Section 8(a)(1) and
(3) by discharging 42 employees for engaging in what
was an illegal economic strike. Her view is inconsistent
with the plain language of Section 8(d) and the Congres-
sional intent in passing it. Since the notice requirement
was not met, the strikers lost their status as protected
employees under the Act, and their discharges by the
Respondent were lawful.
B. The Withdrawal of Recognition
We agree with the judge that the Respondent lawfully
withdrew recognition from the Union, based on a petition
signed by an uncoerced majority of unit employees. Be-
tween January 27 and 31, 2000, 35 of 44 unit employees
signed a petition stating that “We the undersigned em-
ployee’s (sic) of Boghosian Raisin Packing of Fowler,
Calif. don’t want to be represented by Teamsters Union
Local 616 of Fresno, Calif.” On February 2, 2000, the
Respondent withdrew recognition from the Union and

10 The questionnaire required the Union to verify it had mailed the
notice to FMCS and had the return receipt.
subsequently implemented unilateral changes in the em-
ployees’ terms and conditions of employment.
The good-faith doubt standard, as interpreted by the
Supreme Court in Allentown Mack Sales & Service v.
NLRB, 522 U.S. 359 (1998), is the controlling standard
for analysis in this case.11 Allentown Mack instructed
that the term “doubt” as used in this standard signifies
“uncertainty,” so that the test could be phrased in terms
of whether the employer at issue “lacked a genuine, rea-
sonable uncertainty about whether [the union] enjoyed
the continuing support of a majority of unit employees.”
Id. at 367.
Applying the “good-faith uncertainty” standard articu-
lated in Allentown Mack and explicated in subsequent
Board decisions, we conclude, in agreement with the
judge, that the Respondent has demonstrated that it pos-
sessed a good-faith uncertainty regarding the Union’s
majority status based on the antiunion petition signed by
a majority of unit employees.12
For all these reasons, we agree with the judge that the
complaint should be dismissed in its entirety.13
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

MEMBER LIEBMAN, dissenting.
Today’s decision rewards conduct that is precisely the
opposite of what the National Labor Relations Act envi-
sions: good-faith collective bargaining that will avert
unnecessary strikes. Here, an employer waited for em-
ployees to strike before revealing that their union—
ignorant of its own clerical error—had failed to file a

11 During the pendency of this case, the Board issued Levitz, 333
NLRB 717 (2001), in which it overruled Celanese Corp., 95 NLRB 664
(1951), to the extent that it permitted an employer to withdraw recogni-
tion based on a good-faith doubt of the union’s continuing majority
support. Levitz held that “an employer may rebut the continuing pre-
sumption of an incumbent union’s majority status, and unilaterally
withdraw recognition, only on a showing that the union has, in fact, lost
the support of a majority of the employees in the bargaining unit.” 333
NLRB at 725. Levitz further held, however, that the new standard
would not be applied in cases then pending. Id. at 729. Because Levitz
is not applicable here, Chairman Battista and Member Schaumber
express no view as to whether that case was correctly decided.
12 Having concluded that the Respondent lawfully discharged the
strikers, we find that the good-faith uncertainty was raised in a context
free of unfair labor practices of the sort that would tend to cause em-
ployees to become disaffected from the Union.
13 Because we find that the Respondent lawfully discharged the
strikers for engaging in a strike without filing the required FMCS no-
tice, we also agree with the judge that the Respondent did not violate
Sec. 8(a)(1) by advising the strikers that they were being discharged
because they engaged in a strike. We find it unnecessary to pass on the
judge’s alternative finding that the discharge of the strikers was lawful
because they had intentionally walked out in the middle of their shift in
order to damage the Respondent’s product.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388
statutorily required notice of dispute with the Federal
Mediation and Conciliation Service. The employer then:
rejected the union’s offer to return employees to work
under the employer’s last bargaining proposal; threatened
employees with mass discharge to get more concessions;
and, when the union did not give in, quickly fired all the
strikers. New workers were hired who declared their
opposition to the union, letting the employer withdraw
recognition.
In short, the Union’s mistake, seized on by the em-
ployer, cost employees their jobs and the Union its
status. That result, says the majority, is simply a conse-
quence of how the Act works. I disagree. As it did in
another recent case,1 the majority applies Section 8(d)(3)
of the Act, and its loss-of-status provision, in a way that
Congress never could have intended.
I. FACTUAL BACKGROUND
The facts here matter, unless the notice requirements
of Section 8(d) are to be applied mechanically. In this
case, the facts paint the Respondent employer, not the
Union, as the bad actor.
A. Events Preceding the Strike
The Union represented the Respondent’s processing,
handling, and packaging employees at its raisin packing
facility in Fowler, California, for 29 years prior to the
strike at issue. At the time of the strike, the first in the
parties’ history, there were 45 employees in the bargain-
ing unit. The parties’ last collective-bargaining agree-
ment ran from 1996 to May 31, 1999.2
On or about January 26, the Union gave the Respon-
dent written notice of intent to reopen the contract. On
February 19, the Union sent notice of the pending con-
tract dispute to the California Mediation Service (CMS),
as mandated under Section 8(d)(3). The Union prepared
a similar notice for the Federal Mediation and Concilia-
tion Service (FMCS), as Section 8(d)(3) also requires.
However, as a result of an undiscovered clerical error,
that notice was never mailed. For the next 7 months, the
Union’s officials mistakenly assumed that the FMCS
notice had been sent at the same time as the CMS notice.
The parties had a number of bargaining sessions, con-
tinuing through September. When the contract expired,
the parties agreed in writing to extend it pending further
negotiations, with either party permitted to terminate the
extension on 7 days written notice. From the beginning,
however, bargaining was more difficult than on previous
occasions because the Respondent was seeking major
concessions that would enhance its competitive position.

1 See Alexandria Clinic, 339 NLRB 1262, 1269 (2003) (dissenting
opinion of Member Liebman and Member Walsh).
2 All dates are in 1999, unless otherwise indicated.
On September 22, at a union meeting, the unit mem-
bers voted to reject the Respondent’s most recent con-
tract offer and discussed the possibility of striking. On
September 24, the Union sent the required 7-day notice
to the Respondent that it was terminating the extension
agreement as of October 1. Immediately upon receiving
this notice, the Respondent’s counsel and chief negotia-
tor, Howard Sagaser, contacted the FMCS to ascertain
whether the Union had filed the required Section 8(d)(3)
notice with that agency. Sagaser learned that the FMCS
had not received such notice.
In addition, shortly before the October 1 strike, the Re-
spondent contacted a private security company and ar-
ranged for security on short notice. The security com-
pany’s chief official testified that the Respondent’s rep-
resentatives told him they were motivated by “concerns
of some upcoming events,” and “some rumors swirling
around” the facility. The government inspector who pe-
riodically visited the facility to enforce product standards
also testified that she overheard unit employees discuss-
ing the possibility of a strike.
On September 30, the parties had their last bargaining
session. Although the agreement would expire on the
following day and the parties’ bargaining positions were
still far apart, Sagaser did not indicate to the Union, at
this session or before, that he was aware of its failure to
file notice with the FMCS. He did not reveal this knowl-
edge even when the session ended with George Avalos,
the Union’s secretary-treasurer, saying to Sagaser, “I
guess we have to do what we’ve got to do.” The Union’s
negotiating and tactical position therefore was not tem-
pered by knowledge of its exposure to the potential con-
sequences of noncompliance with Section 8(d)(3).
B. The Strike and the Revelation of the Union’s
Notice Error
On October 1 (a Friday), the employees reported for
work at their usual time. At about 7:15 a.m., however, at
the call of the Union, they ceased production, did a stan-
dard clean-up of their work areas (of the type they usu-
ally performed before taking short breaks), walked out,
and set up a picket line.
Less than an hour later, Sagaser contacted Avalos on
the picket line by telephone and told him the strike was
unlawful because the Union had failed to file notice with
the FMCS. Sagaser also called the office of the Union’s
counsel, Jason Rabinowitz, and left a similar message.
Later that day, Rabinowitz called Sagaser and said the
Union had not yet been able to find a return receipt for its
FMCS notice, but that if the documentation was not
found the Union was prepared to “return everybody to
work immediately, under the status quo ante the strike,

BOGHOSIAN RAISIN PACKING CO. 389
while we continue to negotiate for the new contract, and
will the company take the people back.”
Sagaser (by his own testimony) told Rabinowitz that
“the company was reserving all its options, that if the
strike was illegal, we reserved the right to impose disci-
pline up to and including discharge . . . [and that] be-
cause it was an illegal strike the Company could reserve
the right to pick and choose, bring back some but not
all.”
Still later in the day, Sagaser and Avalos agreed to
meet the following day, October 2 (Saturday). Sagaser
testified that “[t]hey [the Union] had asked for the meet-
ing, so I thought perhaps they had a concrete proposal.
And at that time I was still looking at a contract that eco-
nomically was way above anything in the industry. . . .”
C. Negotiations after the Strike Began
At the October 2 meeting, Sagaser (by his own testi-
mony) repeated to the union representatives that the Re-
spondent “was reserving all options . . . up to and includ-
ing discharge,” and that “if it was an illegal strike that we
could bring back some but not all.” Sagaser then sug-
gested that the parties caucus to “discuss proposals,” and
a break was taken for that purpose. After the break had
lasted for awhile, Sagaser and the Respondent’s other
representatives “wonder[ed] why it was taking them [the
Union] so long to put their proposal together.” When the
parties reconvened, Sagaser testified, the Union represen-
tatives “did not give us any type of a counterproposal.”
Sagaser then told Avalos that the owners would decide
what to do the next day, and the meeting ended.
The following day, October 3 (Sunday), Sagaser met
with the Boghosians, explaining (as he testified) that the
employees were engaging in an illegal strike “while we
were meeting with them and while they were not chang-
ing their terms from before.”
On October 4 (Monday), the employees resumed their
picket line at the Respondent’s facility. Also that day the
Union, through a letter from Rabinowitz to Sagaser,
again offered to return the employees to work immedi-
ately under preexisting terms of employment and resume
bargaining. Sagaser responded in writing the same day,
again reserving the Respondent’s right to terminate “all
employees who engaged in the illegal strike” and stating
that unless the Union provided documentation “that the
strike is legal” by 3 p.m. on October 5, the Respondent
would terminate all such employees. Having demanded
and not received such documentation from the Union for
the previous 3 days, and having already checked twice
with the FMCS, Sagaser clearly knew that no such
documentation could be provided.
On October 5, Rabinowitz sent another written offer
from the Union to return to work, this time “on the basis
of the Company’s last, best and final offer at the bargain-
ing table.”
D. The Discharges and the Withdrawal of Recognition
Later that day, the Respondent sent identical discharge
letters to 42 of the striking employees, stating in perti-
nent part that “[c]ommencing on October 1, 1999, you
abandoned your work station and engaged in an illegal
strike. Therefore, the Company has elected to terminate
your employment.” The Respondent then proceeded to
hire new employees, retaining only three strikers who
had special needed skills. The Union and the Respon-
dent had another unsuccessful negotiating session on
October 14, at which the Respondent refused to take
back the employees it had discharged. Toward the end of
January 2000, 35 of the employees then in the bargaining
unit signed a petition stating that they did not want to be
represented by the Union. In a letter dated February 2,
2000, the Respondent withdrew recognition from the
Union. The Respondent subsequently made a number of
unilateral changes in the employees’ terms and condi-
tions of employment.
II. ANALYSIS
Unlike the majority, I believe that under certain cir-
cumstances, an employer may not take advantage of the
loss-of-status provision in Section 8(d), even where a
union has failed to comply with the Act’s notice re-
quirements before striking. This is such a case. Here,
the Union’s failure to submit the FMCS notice was the
result of a clerical error. The Respondent’s own failure
to disclose the Union’s mistake, in turn, reflects a lack of
good faith, confirmed by its actions after the strike be-
gan. Permitting the Respondent to invoke the loss-of-
status provision, as the majority does, defeats the purpose
of Section 8(d)—to avert strikes—and imposes a harsh
penalty that serves no statutory purpose. Neither the
Union nor represented employees can fairly be faulted
for striking, while the employer’s conduct demonstrates
that it had no interest in averting a strike or seeking gov-
ernment mediation. In these circumstances, the Act does
not dictate the majority’s inequitable result—just the
opposite.
A. Controlling Principles
The goal of Section 8(d) of the Act—which encom-
passes the duty to bargain in good faith, notice require-
ments related to contract termination and modification,
and the loss-of-status provision—is to avoid unnecessary
strikes, substituting agreement for economic warfare.
E.g., Allied Chemical & Alkali Workers, Local 1 v. Pitts-
burgh Plate Glass Co., 404 U.S. 157, 185 (1971). The
majority’s mistake here is divorcing the notice require-
ments and the loss-of-status provision from the goals

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 390
Congress intended them to serve. Indeed, my colleagues
flatly state that the Respondent’s conduct would be ir-
relevant “even had it been undertaken in bad faith.”
The Supreme Court has warned us against this error, in
holding that the loss-of-status provision was not trig-
gered by participation in an unfair labor practice strike,
called within the statutory notice period. Mastro Plastics
Corp. v. NLRB, 350 U.S. 270, 284–289 (1956). The
Court observed that we “must not be guided by a single
sentence or member of a sentence, but look to the provi-
sions of the whole law, and to its object and policy.” 350
U.S. at 285 (internal quotation marks omitted). Reject-
ing a literal reading of the Act, the Court explained there
was an “inherent inequity in any interpretation that pe-
nalizes one party to a contract for conduct induced solely
by the unlawful conduct of the other, thus giving advan-
tage to the wrongdoer.” Id. at 287 (footnote omitted).3

The Board, too, has recognized the principle that an em-
ployer’s prior conduct can preclude it from relying on the
loss-of-status provision to defend its discharge of striking
employees. In ABC Automotive Products, 307 NLRB 248
(1992), enfd. 986 F.2d 500 (2d Cir. 1992), an employer
encouraged his employees to engage in a strike that was
unlawful under Section 8(d). Unknown to the union, the
employer did not receive the union’s 60-day notice of in-
tent to renegotiate, required by Section 8(d)(1), until after
a significant delay by the Postal Service caused the notice
to arrive less than 60 days before the employees began
their strike. The employer, however, did not invoke Sec-
tion 8(d) to avert a strike, but rather encouraged one. 307
NLRB at 249. Citing the purpose of the statutory notice
requirement, the Board found that the employer’s conduct
“constituted a waiver of its 8(d) defense to the allegation
that it violated the Act by firing the strikers.” Id.4
In evaluating an employer’s conduct, finally, the duty
to bargain in good faith, as well as general equitable con-
siderations, is implicated. The duty applies with respect
to “the negotiation of an agreement” itself. Section 8(d).
It includes the obligation to disclose relevant information
to the other party. E.g., NLRB v. Truitt Mfg. Co., 351
U.S. 149, 152 (1956). The standard of good faith—a
higher standard than is required in some other business
dealings—must guide the Board’s application of the loss-
of-status provision.

3 Contrary to my colleagues’ suggestion, the guidance of the Mastro
Plastics Court on how to interpret the Act is not limited to cases involv-
ing unfair labor practice strikes.
4 The majority attempts to distinguish ABC Automotive on the basis
that the employer there “baited” the union into striking, while the Re-
spondent here “did nothing to actively encourage” a strike (emphasis
added). Under the circumstances here, however, the Respondent’s
silence was just as culpable.
It is no answer to insist, as the majority does, that the
notice-provision of Section 8(d) be read in isolation. The
Act “is not to be read overliterally,” but rather “must be
interpreted in light of the spirit in which [it was] written
and the reasons for [its] enactment.” General Service Em-
ployees, Local 73 v. NLRB, 578 F.2d 361, 366 (D.C. Cir.
1978) (footnotes omitted).5
B. Application of the Controlling Principles
In light of the principles derived from Section 8(d) as a
whole, it is clear that the Respondent should not be entitled
to rely on the loss-of-status provision here. The Respon-
dent’s course of conduct—centering on its pre-strike failure
to disclose the Union’s error with respect to the FMCS no-
tice—was not consistent with the good faith demanded by
Section 8(d). Indeed, it would be inequitable to reward the
Respondent, and to punish employees and the Union, by
finding that the striking employees had lost their protected
status under the Act and so could be fired at will.
It is undisputed that the Union’s failure to file the re-
quired FMCS notice was inadvertent and that the Union was
unaware of the error.6 The Respondent, of course, learned
of the failure before the strike, but remained silent. Under
the circumstances, it had a duty to speak, if it intended to
rely on the loss-of-status provision. The Board has not hesi-
tated to find that employers have violated the duty to bar-
gain in good faith by misleading the union or by failing to
disclose a material fact, where it is clear that the union’s
ability to effectively represent employees was compro-
mised as a result.7
That was precisely the result of the Respondent’s non-
disclosure here. No reasonable person could believe that

5 Indeed, as Justice Stevens has observed (quoting Justice Aharon
Barak of the Supreme Court of Israel), the “‘minimalist’ judge ‘who
holds that the purpose of the statute may be learned only from its lan-
guage’ has more discretion than the judge ‘who will seek guidance
from every reliable source.’” “Circuit City Stores, Inc. v. Adams, 532
U.S. 105, 133 (2001) (Stevens, J., dissenting).
6 The majority attempts to magnify the Union’s negligence and dis-
tinguish ABC Automotive by emphasizing the steps that Avalos failed to
take that would have brought the notice-error to light earlier. The issue,
however, is not the extent of the Union’s negligence, but whether the
Act dictates that the Respondent’s employees can be punished for it,
despite the Respondent’s own, culpable behavior.
7 See, e.g., Waymouth Farms, Inc., 324 NLRB 960 (1997), enfd. in
relevant part 172 F.3d 598 (8th Cir. 1999) (employer misrepresentation
concerning plant relocation while negotiating for plant closure agree-
ment); Sheller-Globe Corp., 296 NLRB 116 (1989) (severance agree-
ment negotiated on false premise that employer would discontinue
operations); Accurate Die Casting, 292 NLRB 284 (1989) (employer’s
false claim that it was not in financial difficulty). As the Board has
held, “[t]here can be no question as to the justification for Board inter-
vention in circumstances where an employer has concealed an intention
to take drastic, unforeseeable action, in circumstances where such con-
cealment occurred in circumstances preventing a union from taking
steps through negotiation and economic action to protect represented
employees.” Valley Mould & Iron, 226 NLRB 1211, 1212 (1976).

BOGHOSIAN RAISIN PACKING CO. 391
the Union would have struck, and placed its members in
a fatally vulnerable position, had it known of its failure
to file the required FMCS notice.8 The Respondent’s
knowledge accordingly gave it an advantage that it ex-
ploited to undermine the Union’s bargaining power and
its ability to effectively represent its members, as con-
firmed by the actions the Respondent took after the strike
began. It used the loss-of-status provision as a club, re-
jecting repeated offers by the Union to return to work
and rebuffing attempts by several employees to actually
return to work individually, before ultimately firing all
striking employees when the Union made too few con-
cessions.9
All of this could easily have been averted. Good faith
required the Respondent to disclose the Union’s failure
to send the FMCS notice before the strike began. Ordi-
narily, an employer will be under no obligation to make a
prestrike disclosure of a Union’s failure to comply with
the notice requirements of Section 8(d). Compliance,
after all, is the union’s responsibility, and an employer is
entitled to presume that the union understands its legal
obligations. But this case is different. Here, the Re-
spondent knew or should have known that the Union was

8 The Respondent’s chief negotiator Sagaser testified that he drew
the conclusion that the Union “was not going to strike” when he dis-
covered that the Union had filed no FMCS notice. But to infer that no
strike was imminent, Sagaser would have had to assume that the Union
had deliberately chosen to foreclose its members’ protected right to
strike. No rational union would deliberately enter into contract negotia-
tions knowing that it could not use its principal economic weapon—and
knowing that the employer likely would soon learn that a lawful strike
was impossible and that the union had no bargaining leverage. Here,
Sagaser and the Respondent’s management would also have had to
ignore the “rumors swirling around” the facility that some kind of col-
lective action was imminent (notably, the Respondent approached a
security firm well before the strike), as well as union negotiator Avalos’
parting comment at the end of the last prestrike negotiating session that
“I guess we have to do what we’ve got to do.”
9 The majority calls the Union’s offer to return to work “conditional”
because it “only” offered to return first under the preexisting terms of
employment, and then under the terms of the Respondent’s own last
offer. I disagree. Because there was no lawful imposition of new terms
and conditions of employment after the strike began, the Union’s initial
offer accurately stated the terms under which the strikers were entitled
to be returned to work and accordingly was unconditional; and its later
offer to accept the Respondent’s own last offer can hardly be called
“conditional.” It was the Respondent, which “reserved all its options”
and rejected the Union’s offer on each occasion, that prolonged the
strike. See Hawaii Meat Co., 139 NLRB 966, 971 (1962), enf. denied
on other grounds 321 F.2d 397 (9th Cir. 1963) (“An unconditional
request for reinstatement of strikers must carry with it . . . an undertak-
ing to abandon the strike, [but] it does not require that the employees
forfeit their right to continue to strike, if the request is denied”). Con-
trary to the majority, the discharge of the strikers after they offered to
return to work based on the preexisting terms, and then on the Respon-
dent’s own last offer, shows only that the Respondent had been intent
on extracting even more concessions than before, not that it was operat-
ing in good faith.
operating under a mistake that was basic to the negotia-
tions: the belief that the Union could lawfully strike and
so apply bargaining leverage. And given the Respon-
dent’s actual or imputed knowledge, it should have in-
formed the Union of its mistake (at least if it intended to
take advantage of the loss-of-status provision).
There is no reason why federal labor law, which seeks
to avoid disputes, should impose lesser obligations on
parties to a collective-bargaining relationship than the
common law imposes on commercial actors. In the ordi-
nary commercial context, as the Restatement (Second) of
Torts observes:

The continuing development of modern business ethics
has . . . limited to some extent th[e] privilege to take
advantage of ignorance. There are situations in which
the defendant not only knows that his bargaining ad-
versary is acting under a mistake basic to the transac-
tion, but also knows that the adversary, by reason of the
relation between them, the customs of the trade or other
objective circumstances, is reasonably relying upon a
disclosure of the unrevealed fact if it exists. In this type
of case good faith and fair dealing may require a dis-
closure.

Restatement (Second) of Torts §551 (“Liability for Nondis-
closure”), comment l (1977). These words could have been
written with the National Labor Relations Act, and its statu-
tory duty of good faith, in mind.
Not surprisingly, applying equitable principles leads to
the same result, under either estoppel or waiver theories.
By failing to disclose the Union’s notice-failure, the Re-
spondent effectively induced the Union to strike. As a
result, the Respondent should be estopped from invoking
the notice-failure, and the loss-of-status provision, to
defend the mass discharge of striking employees. The
essence of estoppel is that a party may not induce another
party to rely on the truth of certain facts, benefit from
that reliance, and then controvert those facts to the preju-
dice of the other party. See, e.g., Red Coats, Inc., 328
NLRB 205, 206–207 (1999). The necessary elements of
estoppel—the Respondent’s knowledge and intent, as
well as the Union’s mistaken belief and detrimental reli-
ance on an assumption the Respondent knew to be
false—are all present here.10
The notion of waiver, invoked in ABC Automotive
Products, is applicable as well. The loss-of-status provi-

10 See, e.g., Restatement (Second) of Torts §894(2) (“Equitable Es-
toppel as a Defense”) (“If one realizes that another because of his mis-
taken belief of fact is about to do an act that would not be tortious if the
facts were as the other believes them to be, he is not entitled to main-
tain an action of tort for the act if he could easily inform the other of his
mistake but makes no effort to do so.”).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 392
sion is essentially a defense.11 Where an employer dem-
onstrates that it has no interest in averting a strike or
seeking mediation—the purpose of Section 8(d) and its
notice requirements—then it has waived that defense.
The Respondent contacted FMCS, but only to confirm
that the agency had not received the Union’s notice.
And, of course, it never told the Union what it had
learned. In the words of the ABC Automotive Products
Board, the Respondent’s actions “encouraged the type of
conduct Section 8(d) is intended to prevent.” 307 NLRB
at 249.
In short, the Respondent stands in essentially the same
position as the employer in Mastro Plastics, whose un-
fair labor practices triggered a strike, and the employer in
ABC Automotive Products, who explicitly encouraged
employees to strike. In both cases, the Union’s failure to
file the notice ostensibly required by Section 8(d) was
excused, based on the employer’s conduct. The majority
argues that here, employees, as members of the bargain-
ing unit, appropriately must “suffer the consequences” of
the Union’s negligence, just as they would enjoy the
benefits of its representation. But that view misses the
point: it was the employer who was truly at fault. I
therefore would find that the Respondent was barred
from treating its striking employees as unprotected.
C. Remaining Issues
It follows that the Respondent could not have lawfully
discharged employees for participating in the strike.
Rather, it was required to treat them as economic strikers
entitled to protections under the Act and to reinstatement
“upon application, absent a legitimate and substantial
business justification, such as permanent replacement.”
Golden Stevedoring Co., 335 NLRB 410, 412 (2001).
Here, as discussed above, although the Union uncondi-
tionally offered to return the strikers to work on October
1, the Respondent refused to reinstate them. The Re-
spondent does not defend this action on the ground that
the strikers had been permanently replaced, and offers no
other legitimate and substantial business justification for
its conduct. I would accordingly conclude that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
refusing to reinstate the strikers on October 1. For the
same reasons, the Respondent violated Sections 8(a)(1)
and (3) 4 days later by advising the strikers that they
were discharged for engaging in a strike, and by dis-
charging them.12

11 The operation of the loss-of-status provision is not, by its terms,
automatic and irrevocable. Sec. 8(d) provides that a discharged em-
ployee’s loss of protected status “shall terminate if and when he is
reemployed by such employer.”
12 I find it unnecessary to pass on the complaint allegations that the
Respondent violated Sec. 8(a)(4) and (1) by refusing to reinstate the
I would also conclude that the Respondent’s with-
drawal of recognition from the Union violated Section
8(a)(5) and (1). The Respondent’s February 2, 2000 let-
ter to the Union withdrawing recognition was based on a
petition signed by a majority of the employees of that
date stating that they did not want the Union to represent
them. The Respondent’s new employees had been hired
to replace the strikers whom the Respondent unlawfully
discharged and refused to reinstate. If the Respondent
had retained the strikers, as it was legally obligated to do,
it would not have hired the new employees whose peti-
tion led to the withdrawal of recognition. J. M. Sahlein
Music Co., 299 NLRB 842, 850 (1990). In any event,
the Board has long held that an employer may not with-
draw recognition where it has committed unremedied
unfair labor practices tending to cause employees to be-
come disaffected from the union. Olson Bodies, 206
NLRB 779, 780 (1973). The unfair labor practices de-
scribed unquestionably tended to erode the Union’s sup-
port. They therefore precluded the Respondent from law-
fully withdrawing recognition.
Finally, the Respondent admits that after withdrawing
recognition of the Union, it made subsequent unilateral
changes in terms of employment. Those changes also
violated Section 8(a)(5) and (1).
III.
Sadly, in this case, as in Alexandria Clinic, 339 NLRB
1262 (2003), the majority prefers its takes on statutory
words to the realities of a labor dispute. Congress could
not have imagined that a strike unlawful only because of
a union’s clerical error could serve as pretext for dis-
charging an entire workforce and ending a collective
bargaining relationship—at least where the employer
itself is, as an equitable matter, responsible for the strike.
The majority reaches a harsh result, applying the Act
with little regard for its purposes and with no sense of
fundamental fairness. Accordingly, I dissent.

Veronica I. Clements, Esq., for the General Counsel.
S. Brett Sutton and Howard Sagaser, Esqs., of Fresno, Califor-
nia, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Fresno, California, on July 10, 11, and 12,

strikers and by discharging them, and that it violated Sec. 8(a)(3), (4),
and (1) by refusing to rehire them as new employees, because these
additional violations would be cumulative. Like my colleagues, I do
not reach the issue of whether “intentional” product damage caused by
the strikers’ walkout constituted a separate basis for their loss of protec-
tion, as the judge found. Notably, at the time of the strike the Respon-
dent did not cite product damage as a reason for the discharges.

BOGHOSIAN RAISIN PACKING CO. 393
2000, upon the General Counsel’s complaint which principally
alleged that the Respondent discharged 42 economic strikers in
violation of Section 8(a)(3) and (4) of the National Labor Rela-
tions Act. It is also alleged that the Respondent withdrew rec-
ognition from the Charging Party and made certain unilateral
changes in working conditions in violation of Section 8(a)(5) of
the Act and, committed two violations of Section 8(a)(1).
The Respondent generally denied that it committed any vio-
lations of the Act and affirmatively contends the strike occurred
without the Charging Party having given notice to the Federal
Mediation and Consolidation Service as required by Section
8(d) of the Act and therefore the strikers lost their status as
employees. The Respondent also contends that the strike was
unprotected because it breached the no-strike clause of the ex-
tended collective-bargaining agreement; and, the strike started
midshift causing substantial product damage. Finally, the Re-
spondent contends that it withdrew recognition only after re-
ceiving a petition from a majority of unit employees that they
did not want the Union to represent them.
Upon the record as a whole, including my observation of the
witnesses, briefs and arguments of counsel, I hereby make the
following findings of fact, conclusions of law, and recom-
mended order.
I. JURISDICTION
The Respondent is a California corporation with a place of
business in Fowler, California, engaged in operating a raisin
packing facility. In the course and conduct of this business, the
Respondent annually purchases, and receives directly from
point outside the State of California, goods, products, and mate-
rials valued in excess of $50,000 and annually sells goods and
services valued in excess of $50,000 directly to customers out-
side the State of California. The Respondent admits, and I
conclude, that it is an employer engaged in interstate commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, Packing House Employees and Ware-
housemen’s Union, Local 616, a/w International Brotherhood
of Teamsters, AFL–CIO (the Union) is admitted to be, and I
find is, a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The operative facts in this matter are largely undisputed.
Since 1970 the Union has represented a unit of the Respon-
dent’s employees engaged in the processing, handling and
packing of dried fruits or nuts, with the usual exceptions. And,
the parties negotiated a series of collective-bargaining agree-
ments, the last of which was effective from 1996 to May 31,
1999.1
On or about January 26, the Union served the Respondent a
written notice that it desired to reopen the contract and on Feb-
ruary 19, sent an appropriate notice under Section 8(d)(3) to the
California Mediation Service. The Union did not send a notice

1 All dates are in 1999, unless otherwise indicated.
to the Federal Mediation and Conciliation Service then, or at
any time prior to the strike of October 1.
The parties had a number of bargaining sessions in the
spring, summer, and fall but were unable to reach an agree-
ment. Thus, on September 24 the Union served a written notice
on the Respondent, as required by the agreement to extend the
contract, that it was terminating the agreement.
On September 30 the parties had a final bargaining session,
but were again unable to reach an agreement. On October 1 the
employees reported for work at their usual time and at 6 a.m.
began processing raisins. At about 7:15 a.m. the Union called
on them to strike, and after a quick cleanup (of the type usually
performed before going [on a] break as opposed to the thorough
nightly cleaning) they went out.
At about 7:50 a.m., Howard Sagaser, the Respondent’s attor-
ney, contacted George Avalos, the Union’s secretary and treas-
urer, and told him that the strike was in violation of Section
8(d)(3) and (4) because the Union failed to give the FMCS
notice. He suggested that Avalos have the Union’s attorney call
him and Sagaser called the FMCS office in Washington to con-
firm that the agency had no record of receiving the 8(d) notice.
He had earlier made such an inquiry and learned that the FMCS
had no record of receiving a notice from the Union.
Sagaser then called the office of the Union’s attorneys, leav-
ing the same message on the voice mail. At about 9 a.m., Jason
Rabinowitz, one of the Union’s attorneys was contacted by his
secretary with this message. Rabinowitz called Avalos, who at
the time was on the picket line, and told him what Sagaser had
said. Avalos told Rabinowitz (without checking the file) that
the notice was in fact sent in February.
A couple of hours later Rabinowitz made contact with Sa-
gaser and told him that he had been assured by Avalos that the
notice was sent—that “the local feels very strongly that it was
sent in.” Sagaser responded that the FMCS had no record of
receiving it, and gave Rabinowitz the FMCS number in Wash-
ington.2
Later Friday afternoon, Rabinowitz called Sagaser and said
the Union had not been able to find the return receipt, but he
was sure the notice had been sent and continued to be hopeful
that they could find the return receipt. “But,” he told Sagaser,
“if we’re not able to find it, and we’re not able to demonstrate
that the form was mailed to FMCS, the union has authorized
me to offer to return everybody to work immediately, under the
status quo ante the strike, while we continue to negotiate for the
new contract, and will the company take the people back.”
Rabinowitz testified that Sagaser said that “after what’s hap-
pened we’re not going to take the people back. We—we may
consider taking certain people back, or some people back on an
individual case-by-case basis, but we’re not taking them all
back.”
In filing notices to reopen contracts, the Union uses a four-
part form. One part is sent to the company, another to the
FMCS, another to the state agency, and the fourth is kept in the
Union’s file. On searching the Union’s file, Avalos found the

2 Sagaser filed a charge by FAX to the effect that the Union violated
Sec. 8(b)(3). This charge is being held in abeyance, pending the out-
come of the instant case.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 394
part of the form meant to be sent to the FMCS. He did not find
a return receipt from the FMCS, though receipts from the Cali-
fornia agency and the Respondent were there.
The parties met on Saturday afternoon. Rabinowitz stated
that the notice was apparently not sent to the FMCS due to a
clerical error. Sagaser said that the “family” wanted to meet
and discuss all the pending issues, and perhaps he and the Un-
ion’s representatives could get together the next day. In fact
they did not meet Sunday.
Thus on Monday, October 4, Rabinowitz wrote Sagaser:
“The Union has authorized me to offer to return the Boghosian
employees to work immediately, so that production may re-
sume and continue while the parties work to negotiate a new
contract. Of course, this offer is for all the employees to return
to work, with their seniority intact, under the previously exist-
ing terms and conditions of employment.”
Sagaser responded, in material part, that “(f)rom the outset of
the strike, Boghosian Raisin Packing Company has notified the
Union that it is reserving the right to impose discipline, includ-
ing termination, of all employees who engaged in the illegal
strike. Unless the Union can provide documentation by 3:00
p.m. on October 5, 1999 that the strike is legal, it is the intent of
Boghosian Raisin Packing Company to terminate all employees
who engaged in the illegal strike which began on October 1,
1999.”
Rabinowitz wrote back on October 4: “As I informed you
during our meeting on Saturday, October 2, Union Secretary-
Treasurer George Avalos prepared the notification form in
February of this year, and gave it to the Union’s secretary to
send out to the appropriate authorities. The Union’s search of
its files on Friday revealed that the form was apparently not
mailed to the FMCS due to a clerical error.”
And on October 5 Rabinowitz wrote Sagaser: “This will
confirm my voice mail message to you of a few minutes ago,
offering that the employees will return to work on the basis of
the Company’s last, best and final offer at the bargaining ta-
ble.”
Finally, on October 5 the Respondent sent discharge letters
to each striking employee: “Commencing on October 1, 1999,
you abandoned your work station and engaged in an illegal
strike. Therefore, the Company has elected to terminate your
employment.”
The Respondent then began hiring replacements, retaining
three of the striking employees. Thus by October 26, there
were 49 employees in the bargaining unit—three retained and
46 new. That number was reduced to 44 as of January 31,
2000. Between January 27 and 31, 35 of these employees
signed petitions stating (in the English translation) that: “We
the undersigned employee’s [sic] of Boghosian Raisin Packing
of Fowler, Calif. don’t want to be represented by Teamsters
Union Local 616 of Fresno, Calif.”
On February 2, 2000, the Respondent withdrew recognition
from the Union and subsequently made certain changes in
terms and conditions of employment without notice to or nego-
tiating with the Union.
B. Analysis and Concluding Findings
1. The unlawful strike and loss of employee status
There is a distinction, not always clearly defined in the cases,
between an unlawful strike and one which is unprotected.
There is also a distinction between striking employees who may
be disciplined for engaging in unprotected activity associated
with a strike and strikers who lose their status as employees.
This case deals with an unlawful strike and employee loss of
status under Section 8(d). Those cases considering levels of
unprotected activity and motive for discipline are inapposite.
The General Counsel argues that the Respondent violated
Section 8(a)(3) and (4) by 1) refusing the strikers’ uncondi-
tional offers to return to work, 2) discharging them on October
5, and 3) refusing thereafter to rehire them because: (a) they
engaged in a strike protected by the Act; (b) in retaliation for
the Union’s having previously filed an unfair labor practice
charge and grievance; and (c) for having engaged in hard bar-
gaining.
The Respondent contends that the strike was unlawful, since
notice to the FMCS required by Section 8(d) was not given; and
was unprotected 1) since it started within the 7-day notice pro-
vision of the extension agreement while the “no-strike” clause
of the expiring collective-bargaining agreement was still in
effect and, (2) the strike began midshift thus causing substantial
product damage.
There is no question that the Union did not send any kind of
notice of the labor dispute to the FMCS prior to calling the
strike on October 1. From statements and arguments of coun-
sel, it is clear that the principal issue in this matter is whether
this lack of notice caused the strike to be illegal and caused the
strikers to lose their status as employees under the Act. Though
the result here may be more harsh than intended by Congress,
the conclusion is inescapable that the strike was illegal and the
employees lost their protection under the Act. The Board, with
court approval, has consistently held that the notice require-
ments of Section 8(d), and the penalties for failing to do so, are
clear and unambiguous. Notices to the FMCS and appropriate
state agency are required, lest the union be in violation of its
duty to bargain and the strikers lose their status as employees.
Early on, the Board held that the notice requirements of Sec-
tion 8(d) are mandatory and a strike without giving notice to the
FMCS was unlawful and caused the union to be in violation of
its duty to bargain under Section 8(b)(3). Retail Clerks Interna-
tional Local1179 (J. C. Penny Co.), 109 NLRB 754 (1954).
Then in 1963, on facts similar to those here, the Board held
that the union’s “failure to file the notices required by Section
8(d)(3) caused the strike to be unlawful from its inception.”
Fort Smith Chair Co., 143 NLRB 514 (1963), enfd. 336 F.2d
738 (D.C. Cir. 1964), cert. denied 379 U.S. 838 (1964). The
Board rejected the General Counsel’s contention that the true
motive for discharging the strikers was its financial difficulties,
the union’s filing grievances and the union’s uncompromising
attitude in negotiations. Said the Board, “by operation of the
loss-of-status provision of Section 8(d), the strikers lost their
employee status and the protection of Section 8(a) when they
walked out on June 1 and that, consequently, such motive as

BOGHOSIAN RAISIN PACKING CO. 395
may have been behind the Respondent’s actions with respect to
them is immaterial.” 143 NLRB at 519.3
Though recognizing the clear language of Section 8(d) and
the holding in Fort Smith Chair Co., the General Counsel nev-
ertheless argues that the Union’s failure to give notice to the
FMCS is de minimus, should be excused as an administrative
error outside the control of the Union, and/or the Respondent is
culpable for the Union having called an illegal strike.
Counsel for the General Counsel has cited no authority for
the proposition that failure to give notice to the FMCS or ap-
propriate state agency has ever been considered de minimus.
To the contrary, even where the state agency rarely engages in
mediation, suggesting that failure to notify it would not be sig-
nificant, the Board has held the notice to be required. Meatcut-
ters Local 576 (Kansas City Chip Steak Co.), 40 NLRB 876
(1963). Retail Store Employees Local 322 (Willow Corp.), 240
NLRB 1109 (1979). Only in the case where the state does not
have an agency established to mediate and conciliate labor
disputes are parties relieved from filing notice with the state.
Brotherhood of Locomotive Firemen & Engineers (Phelps
Dodge Corp.) v. NLRB, 302 F.2d 198 (9th Cir. 1962).
Similarly, counsel for the General Counsel argues that the
Respondent showed no signs of being interested in mediation
because when Sagaser called the FMCS he did not request that
agency’s aid in resolving the dispute. Thus notice to the FMCS
would have been futile. I find nothing in the Act, or cases con-
struing Section 8(d), to the effect that this speculation, even if
true, would relieve the Union of its obligation to give the
FMCS notice.
Counsel for the General Counsel cites Longshoremen ILA
Local 1814 (Amstar Sugar Corp.), 301 NLRB 764 (1991), for
the proposition that the Union should be excused from its tech-
nical failure to give notice to the FMCS. In that case a divided
Board approved a settlement agreement over the General Coun-
sel’s objection reached after the administrative law judge had
found the union to have violated the Act by striking within 30
days of sending the mediation agencies notice (20 and 26 days
respectively). Though stating that the strike was technical vio-
lation against a company with “little interest in mediation” the
Board concluded that the private settlement agreement provided
substantially the same remedy as the judge ordered. I do not
believe this case is authority to excuse the Union’s failure to
give notice here.
First, the Board did not reverse or even question the judge’s
finding of an unfair labor practice. The Board’s comments
concerning the company having notice for a “not insignificant”
time related to its justification for approving a settlement
agreement over the objections of the General Counsel. Here
there was no notice at all. Counsel for the General Counsel
contends, however, that these cases are analogous since counsel

3 This was apparently a five-member decision, with Chairman
McCullouch concurring that the discharges were motivated by the
unlawful strike, thus, he would not decide the loss of status issue.
Member Fanning dissented on grounds that the loss of status provision
would not apply for failure to notify the FMCS or state agency since, as
written at the time, Sec. 8(d)(4) referred to the “sixty-day period speci-
fied in this subsection.” This phrase was subsequently amended to read
“within any notice period specified in this subsection.”
for the Respondent could have asked the FMCS to come into
the dispute and having failed to do so demonstrated “little in-
terest” in mediation. In effect, the General Counsel argues that
blame for the Union’s failure to give notice should shift to the
Respondent since it did not ask for mediation. The Long-
shoremen’s case is not authority for such a proposition.
Counsel for the General Counsel does cite some legislative
history for the 1974 heath care amendments to the Act along
with a case construing the notice requirements of Section 8(g),
arguing that a “rule of reason” and caution against “rigid adher-
ence” to the notice requirements by analogy apply to the situa-
tion here. Thus in Greater New Orleans Artificial Kidney Cen-
ter, 240 NLRB 432 (1979), the Board concluded that failure of
the company to receive the required notice under Section 8(g)
did not make the strike unlawful, or cause the strikers to lose
their status as employees. The union in fact mailed the notice
in time for it to be received within the 8(g) time period. The
fact it was not the Board attributed to a failure of the U.S.
Postal Service. Further, the company had actual timely notice,
having been called by the FMCS, and made contingency prepa-
rations for the strike. The Board found that the union took
“reasonable steps to insure compliance with the 8(g) require-
ments.” “Thus, we find that it would be inequitable to hold the
Union responsible for the untimely service of the notice when
no reason for the delay can be attributed to it.” 240 NLRB at
433. Finally, since the company had actual notice for the pe-
riod provided in Section 8(g), the Congressional concern relat-
ing to health care institutions for the continuity of patient care
was satisfied.
None of the facts or reasoning of New Orleans Artificial
Kidney, apply here. The key fact was delay in delivering the
8(g) notice to the company—not, as here, failure even to send
the appropriate notice. The Union here, unlike the union in
New Orleans Artificial Kidney, cannot be excused because
some outside agency failed to deliver a properly sent notice. In
fact, it was agents of the Union who did not send the notice and
it was agents of the Union who took no steps to insure that it
was sent.
The Union has three employees—Avalos, the secre-
tary/treasurer, one business agent, and one secretary. Until her
retirement on June 1, the secretary was Marilyn Banister. She
was replace by her daughter Debra.
Avalos testified that his practice was to have the secretary
prepare the reopener letters and appropriate notices. He would
then review the documents, sign them, and give them to her to
mail. The General Counsel blames the failure to notify the
FMCS on a now retired clerk. But she was not an outside
agency. Certainly Avalos had some responsibility to supervise
and insure that important matters were completed by the person
to whom he delegated the task. He did not. It would have been
obvious, had he looked at his file for the Respondent, that the
notice had not been sent to the FMCS. Not only was there no
return receipt, but the page of the form to go to the FMCS was
still in the file.
On September 28, Avalos completed and signed a form sent
to the Teamster Joint Council for the purpose of obtaining sanc-
tion for the forthcoming strike. Paragraph 11 of this form
reads:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 396

Attach copies of 60-day modification or termination notice
and 30-day notice to federal and state mediation services, re-
quired by Taft-Hartley Section 8(d), as well as copies of certi-
fied mail receipt signed by the company and federal and state
mediation services. (Emphasis in original.)

Avalos testified that he did not look for the return receipts at
this time, while blaming his secretary who “is the one that al-
ways took care of this.” However, the new secretary testified
that Avalos prepared the form to send to the Joint Council and
gave her the material to be sent along with the form. Avalos
also testified that he did not understand the significance of fail-
ing to send the notices. This, notwithstanding that the require-
ment to attach the return receipts was underlined. I conclude
that for any reasonable person, the requirement in paragraph 11
should have been a red flag, alerting Avalos to the importance
of having sent the appropriate notices before striking. Perhaps
Avalos was not aware of the seriousness Congress and Board
attaches to giving notices under 8(d) or the potential conse-
quences for failure to do so. But this lack of understanding, if
any, cannot be a basis for a ruling in this matter.
The General Counsel argues that the mistake in failing to
send a notice to the FMCS was “made by a clerical employee
who had the obligation to handle these matters” and such re-
lieves the Union from responsibility. To accept this argument
would be tantamount to rewriting Section 8(d) by saying that
the notice requirements of Section 8(d) need not be met if re-
sponsibility for filing the notices is delegated to a staff em-
ployee. I conclude that the Union cannot be excused because
its chief executive officer delegated responsibility for sending
the notices to someone else.
Citing ABC Automotive Products Corp., 307 NLRB 248
(1992), the General Counsel argues that the Union’s failure
here can be attributed to the Respondent, thus the Respondent
can not avail itself of the 8(d) defense. In ABC Automotive,
among other things, the company refused to make a wage offer
during negotiations and then told the union that the employees
should go ahead and strike if they wanted. The Board held that
striking within the 60 day “cooling off” period did not violate
Section 8(d) because the respondent encouraged the employees
to strike and such “constituted a waiver of its 8(d) defense to
the allegation that it violated the Act by firing the strikers.”
Since “the Respondent encouraged the type of conduct Section
8(d) is intended to prevent—a strike commencing less than 60
days after receipt of a notice of termination or modification . . .
the Respondent may not subsequently avail itself of the reme-
dies in Section 8(d) to justify its unlawful termination of the
striking employees.” 307 NLRB at 249.
There is nothing in this record to suggest that the Respondent
encouraged the strike or encouraged the Union to fail to send
notice to the FMCS. The Respondent’s Counsel did inquire of
the FMCS whether the notice had been sent, and did not tell the
Union what he had learned until after the strike began. But he
had no control over when, or whether, the employees would
strike. Further, within a half-hour or so of the strike’s begin-
ning, Sagaser told Avalos that the strike was illegal for failure
to give the notice. Avalos took no steps then to call off the
strike or even check the correctness of Sagaser’s assertion.
From the clear language of the Act, and the overwhelming,
long-time case authority, I conclude that where, as here, the
union fails to give a mediation agency the notice required by
Section 8(d)(3), any strike in support of its negotiation position
is an unfair labor practice and the strikers lose their status as
employees. Accordingly, the Respondent was privileged to
discharge any or all of them for striking, and whatever other
motive the Respondent may have harbored is immaterial.
I therefore do not consider the General Counsel’s argument
that a motivating cause for discharging the strikers was an un-
fair labor practice charge the Union filed relating to the Dehy-
drator Plant (in a case dismissed by Judge Kennedy in a bench
decision);4 nor the grievance relating to the Dehydrator Plant;
nor the contention that the Respondent was motivated by the
Union’s hard bargaining. Even if these factors were present,
unless and until the strikers regained their status as employees,
they had no rights under Section 8 of the Act.
In paragraph 11 of the complaint, it is alleged that when the
discharged strikers made application to be hired as new em-
ployees, the Respondent was required to do so. This is appar-
ently an alternative theory in the event that discharge of the
strikers is found lawful. I find this allegation has no merit. Of
course the Respondent could have rehired them, and in doing so
the loss of status would have ended. However, unless and until
that occurred, the strikers had no status under the Act as to the
Respondent. To conclude otherwise would be to amend out of
the Act the loss-of-status clause.
2. The no-strike clause defense
The Respondent also argues that the strike occurred within 7
days of the Union’s giving notice to terminate the contract as
extended. Therefore it was unprotected and the employees
could be discharged for striking. I disagree. I conclude that
notice given on September 24 was sufficient to terminate the
contact by October 1 when the strike commenced. Therefore,
for this reason the strike was not unprotected.
3. Product damage
The same, however, cannot be said of the Respondent’s de-
fense that by striking midshift, the employees damaged prod-
uct. Though a finding in this regard is not critical to this deci-
sion, it should be noted that the Union apparently decided on
the evening of September 30 to strike the next day, however
rather than having employees not report for work, the Union
did the opposite. The employees reported and began working,
then at 7:15 a.m. word was passed to strike. While the employ-
ees did a mini cleanup, of the type required when they went on
a short break, there is no question that by leaving for the day,
there was product damage. Indeed, the Commodity Grader for
the United States Department of Agriculture assigned to the
Respondent testified that some of the raisins left on the ma-
chine might be salvageable, but those in the water tank would
not. At least, she testified, “I wouldn’t want to eat them.” And
there can be little question that the product damage was inten-
tional. In such a situation, the action of employees is unpro-
tected.

4 Case 32–CA–17375.

BOGHOSIAN RAISIN PACKING CO. 397
The Board has long held that employees have the duty to
take reasonable precautions when striking in order to avoid
damage to the company’s property. Marshall Car & Wheel
Foundry Co., 107 NLRB 314 (1953), enfd. denied 218 F.2d
409 (5th Cir 1955) (the court disagreeing that the company had
waived its right to discharge the strikers for engaging in unpro-
tected activity). Necessarily a strike will cause some economic
loss to an employer, as well as to the employees. But damage
to the company’s property goes beyond such loss and where
strikers deliberately time their strike to cause product damage,
then their activity is unprotected for which they can be disci-
plined or discharged.
4. Withdrawal of recognition
Shortly after the Respondent discharged the strikers, it began
hiring replacements. It has long been held that an employer
may withdraw recognition from the union which represents its
employees if it has a good-faith doubt of the union’s continued
status as the majority representative of employees. Celanese
Corp. of America, 95 NLRB 664 (1951). This doubt, however,
“must be raised in a context free of unfair labor practices of the
sort likely, under all the circumstances, to affect the union’s
status, cause employee disaffection, or improperly affect the
bargaining relationship itself.” Lee Lumber & Building Mate-
rial Corp., 322 NLRB 175, 177 (1996).
Since I conclude that the strikers lost their status as employ-
ees, and were lawfully discharged and denied reinstatement, I
conclude that there were no unfair labor practices of the sort
which would impair a good faith doubt. I further find that
when presented with a petition signed by a substantial majority
of the new employees that they did not want to be represented
by the Union, the Respondent had a good-faith doubt of the
Union’s continued status as the majority representative. There-
fore, the withdrawal of recognition on February 1, 2000, was
not unlawful. Fort Smith Chair Co., supra.
Since the Respondent lawfully withdrew recognition, it fol-
lows that any subsequent changes it made to employee terms
and conditions of employment was not violative of Section
8(a)(5).
5. The alleged Section 8(a)(1) violations
It is alleged that in late September, Richard Lokey, the Re-
spondent’s plant manager violated Section 8(a)(1) (and pre-
sumably supplied a proscribed motive for the discharges) by
telling an employee that “he hoped Unit employees would go
on strike so he could fire them all.”
Support for this allegation is the testimony of Scott Lokey,
Richard Lokey’s cousin and a machine operator for the Re-
spondent until his discharge for engaging in the strike. Scott
Lokey testified that they were drinking at a bar near the Re-
spondent’s plant after work, as they did on a fairly regular ba-
sis. During this, Scott said that Richard asked about the em-
ployees’ view of the contract negotiations and then said that he
hoped the employees went on strike so he could fire them all.
Richard Lokey denied making such a statement and it is his
testimony I credit. First, I found Richard more credible than
Scott. Second, [the] statement attributed to Richard simply
makes no sense. Though Richard was the plant manager, he
did not in fact have the authority to fire the entire workforce,
nor was there shown any reason why he would want to. There
is no proven animosity between Richard Lokey and any of the
employees. I simply do not believe that Richard Lokey made
the statement attributed to him by his cousin.
The discharge letter to all striking employees of October 5 is
also alleged violative of Section 8(a)(1). As I have found the
Respondent’s act of discharging the strikers to have been law-
ful, I conclude that sending the letter was not a violation of the
Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 5
ORDER
The complaint is dismissed in its entirety.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.