Dold Foods, Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1988

289 N.L.R.B. 1323 (N.L.R.B. 1988)

DOLD FOODS 1323
Dold Foods, Inc. and United Food and Commercial
Workers International Union, AFL-CIO &
CLC, District Local 340. Cases 17-CA-11309
and 17-CA-11309-2
July 28, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On November 9, 1983, Administrative Law
Judge Stephen J. Gross issued the attached deci-
sion. The General Counsel and the Respondent
filed exceptions and supporting briefs, and the
Charging Party filed exceptions adopting the Gen-
eral Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that on November 2, 1982,
when the Respondent withdrew recognition of the
Union, it possessed the requisite objective consider-
ations for a good-faith doubt of the Union's majori-
ty status. In so doing, the judge found that in cal-
culating union support , the Respondent was justi-
fied in including the strike replacements among
those employees who opposed representation by
the Union. We disagree.'
As a preliminary matter we note that in Station
KKHI, 284 NLRB 1339 (1987), we overruled the
presumption set forth in Pennco, Inc.' that "perma-
nent strike replacements hired during a strike sup-
port the union."3 In overruling Pennco, however,
we declined to adopt the contrary presumption that
permanent strike replacements who cross a picket
line repudiate the union as a collective-bargaining
representative.4 We noted that "adoption of this
presumption would disrupt the balance of compet-
ing economic weapons long established in strike sit-
uations and substantially impair the employees'
right to strike by adding to the risk of replacement
i The judge also found that the Respondent, in concluding that the an-
tiunion employees outnumbered the prounion employees , properly relied
on a statement by the union representative that of the striking employees
"approximately 30 percent" would not seek reinstatement We find it un-
necessary to rely on this fording of the judge since even assuming that
"approximately 30 percent" of the strikers did not support union repre-
sentation, as set forth below, the Respondent has not established a good-
faith doubt that a majority of all the employees were of that view.
' 250 NLRB 716 (1980), enfd 684 F 2d 340 (6th Cir 1982), cert
denied 459 U S 994 (1982)
Station KKHI, supra at 1340
Id at 1344
the risk of loss of the bargaining representative as
soon as replacements equal in number to the strik-
ers are willing to cross the picket line."5 Thus, we
declined "to maintain or create any presumptions"
concerning the union sentiments of strike replace-
ments, stating that we would "review the facts of
each case , but [would] require `some further evi-
dence of union non-support' before concluding that
an employer's claim of good-faith doubt of the
union's majority is sufficient to rebut the overall
presumption of continuing majority status."6
The judge found the Pennco presumption rebut-
ted here by evidence that: (1) the replacements
were aware that the Union was "not bargaining for
them" and that the Union was seeking their dis-
charge; (2) some employees had approached the
Respondent's president about how to get rid of the
Union; and (3) there were some flat tires and inci-
dents of verbal abuse of replacements crossing the
picket lines. Even in the absence of the now reject-
ed Pennco presumption, however, those factors are
insufficient to support the Respondent's asserted
good-faith doubt.
Admittedly, in Station KKHI one of the factors
that the Board relied on in overruling Pennco was
that
. . . replacements' attitude towards union rep-
resentation may be influenced by [the aware-
ness of the union's primary concern for the
strikers' welfare rather than that of the re-
placements], which in turn undermines the
basis for an evidentiary presumption of support
for the union.?
Nevertheless, as noted, we declined to adopt a pre-
sumption that these replacements oppose union rep-
resentation. In this regard, unions often demand, at
least in the first instance, that the replacements be
discharged and the strikers rehired. Frequently, as
in the instant case, the union's position may be
modified in the course of the negotiations on the
issues underlying the strike.8 Indeed, in the instant
case, as the strike wore on, the Union took a pro-
gressively weaker position until, at the bargaining
session of October 23, it requested only that the
Respondent discharge those replacements (about 32
out of 201 total replacements) who had not yet
completed the probationary period. Moreover, here
the replacements' knowledge of the Union's posi-
tion was based on statements made by the Re-
spondent's representatives at meetings held be-
tween the Respondent and nonstriking employees
6 Id at 1344
6 Id at 1344-1345.
T Id. at 1344
8 See Johns-Manville Sales Corp, 289 NLRB 358, 362 (1988)
289 NLRB No. 156
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and on occasional letters to the employees from the
Respondent 's president. In a letter following the
October 23 bargaining session , the Respondent
stated that the session had been taken up primarily
with a dispute over the right to the 217 jobs in the
bargaining unit . The letter thus did not accurately
reflect the position of the Union, which by that
time had conceded most of the unit jobs to the re-
placements . Particularly inasmuch as the Respond-
ent's letter misstated the Union's position in a
manner likely to influence replacements against the
Union, we do not rely on the replacement employ-
ees' purported awareness of the Union's position on
reinstatement in assessing the Respondent's asserted
good-faith doubt.
Concerning the expression of replacement em-
ployee opposition to the Union, the judge noted
that this consideration is supported only by the Re-
spondent 's president's testimony that some employ-
ees had voiced antiunion sentiments . The judge
himself properly concluded (JD at fn. 26) that such
"[u]nqualified, nonspecific testimony . . . has been
rejected as valueless." In any event, the testimony
did little to further the argument that the Respond-
ent had an objective basis for counting all of the
replacements in the antiunion camp.9
Finally, the judge properly noted that the picket
line misconduct and harassment here was "much
less extreme" than that in I T Services10 and that
no one had shown that the Union was "in any way
responsible." The misconduct alleged here consist-
ed of 12 nails found in the Respondent's driveway,
425 dollars' worth of damage to the tires of non-
striking employees and some undefined picket line
incidents that the Respondent's president testified
had been reported to supervisors by nonstriking
employees. No employee testified in this regard.
These incidents of picket line misconduct cannot be
equated to the "pervasive" violence present in I T
Services and are insufficient to justify the conclu-
sion that the 201 replacements opposed the Union.
In view of the foregoing, we find that the Re-
spondent did not possess objective considerations
when it concededly withdrew recognition of the
Union and, accordingly, that the Respondent vio-
lated Section 8(a)(1) and (5) of the Act. Further-
more, because the Respondent's subsequent refusal
9 See, e g., Cail 's Generators & Armature Co, 237 NLRB 1198, 1199 fn
7, and 1201 ( 1978) With respect to the union 's request for the discharge
of replacements and asserted antiunion sentiments voiced by unidentified
employees , we find, as did the judge, that the facts here are less compel-
ling than those in I T Services, 263 NLRB 1183 (1982) In any event, as
noted in Johns-Manville Sales Corp, supra at fn. 10, we would weigh
these factors differently than did the judge in I T Services
10 The Judge in I T Services set forth in detail the violence which oc-
curred there, noting the apparently racial character of some of the invec-
tive, and found that some of the violence occurred in the presence of the
union president or was committed by union picket captains.
to execute the collective-bargaining agreement it
had negotiated with the Union was premised on its
withdrawal of recognition, we find that the Re-
spondent violated Section 8(a)(1) and (5) of the Act
in refusing to execute that agreement.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge's Conclu-
sion of Law 2 and add Conclusion of Law 3.
"2. Dold violated Section 8(a)(1) and (5) of the
Act when it withdrew recognition of Local 340 on
November 2, 1982.
"3. Dold violated Section 8(a)(1) and (5) of the
Act when, on or after November 4, 1982, it refused
to execute the collective-bargaining agreement it
had negotiated with Local 340."
AMENDED REMEDY
Having found that the Respondent violated Sec-
tion 8(a)(1) and (5) by withdrawing recognition
from the Union and refusing to execute the agreed-
on collective-bargaining agreement , we shall order
the Respondent, in addition to adopting those rem-
edies provided in the remedy section of the judge's
decision, to cease and desist from the unfair labor
practices found, and to take the following affirma-
tive action designed to effectuate the policies of the
Act. The Respondent shall be ordered to recognize
and, on request, bargain with Local 340 as the ex-
clusive collective-bargaining representative of its
employees. The Respondent shall also be ordered
to execute the collective-bargaining agreement ne-
gotiated with Local 340. We shall also order the
Respondent to make all affected unit employees
whole for losses they may have incurred by virtue
of the Respondent's unlawful conduct in the
manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest on any amount due
paid in the manner prescribed in New Horizons for
the Retarded. 1I Further, the Respondent shall make
whole employees for any losses they may have suf-
fered by its failure to execute the collective-bar-
gaining agreement with backpay, if any, computed
in accordance with Ogle Protection Service, 183
NLRB 682 (1970), with interest computed in ac-
cordance with New Horizons for the Retarded,
supra.
i i In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U S C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 US C. § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977).
DOLD FOODS 1325
ORDER
The National Labor Relations Board orders that
the Respondent, Dold Foods, Inc., Wichita,
Kansas, its officers, agents, successors , and assigns,
shall
1. Cease and desist from
(a) Discouraging membership in or lawful strike
activity on behalf of United Food and Commercial
Workers International Union, AFL-CIO & CLC,
District Local 340, or any other labor organization,
by unlawfully failing to recall striking employees to
existing vacancies on the labor organization's un-
conditional offer, on behalf of such employees, to
return to work.
(b) Failing and refusing to recognize and bargain
with Local 340, on its request, as the exclusive rep-
resentative of the employees in the appropriate
unit.
(c) Refusing to execute the collective-bargaining
agreement negotiated with Local 340 as the exclu-
sive representative of the employees in the appro-
priate unit.
(d) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole, with interest, any employee
whose recall was delayed by reason of Dold's un-
lawful acts.
(b) Recognize and, on request, bargain with
Local 340 as the exclusive representative of the
employees in the appropriate unit.
(c) Execute the collective-bargaining agreement
negotiated with Local 340 as the exclusive repre-
sentative of the employees in the appropriate unit
and give it retroactive effect.
(d) Make whole employees for any loss of wages
or other employment benefits they may have suf-
fered by reason of its refusal to execute the collec-
tive-bargaining agreement in the manner and with
interest as described in the remedy section of the
decision.
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at its facility in Wichita, Kansas, copies
of the attached notice marked "Appendix.""
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
Copies of the notice, on forms provided by the Re-
gional Director for Region 17, after being signed
by Dold's authorized representative, shall be posted
by Dold immediately upon receipt and maintained
for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Dold to ensure that the notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the 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.
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discourage you from membership
in, or participating in lawful strike activity on
behalf of, United Food and Commercial Workers
International Union, AFL-CIO & CLC, District
Local 340, or any other labor organization, by un-
lawfully refusing to recall striking employees to ex-
isting vacancies in accordance with their Union's
unconditional offer, made on their behalf, to return
to work.
WE WILL NOT refuse to recognize and bargain
with Local 340 as the exclusive representative of
the employees in the appropriate unit.
WE WILL NOT refuse to execute the collective-
bargaining agreement negotiated with Local 340 as
the exclusive representative of the employees in the
appropriate unit.
1326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole those employees who en-
gaged in the March 1 through November 8, 1982
strike against us and whose recalls were delayed by
reason of our unlawful acts by reimbursing them
for any loss of earnings and other benefits resulting
from the delay in recall, less any net interim earn-
ings, plus interest.
WE WILL, on request, bargain with Local 340 as
the exclusive representative of our employees in
the bargaining unit.
WE WILL execute the collective-bargaining
agreement negotiated with Local 340 as the exclu-
sive representative of our employees in the appro-
priate unit and give it retroactive effect.
WE WILL make whole, with interest, employees
for any loss of wages or other employment benefits
they may have suffered by reason or our refusal to
execute the collective-bargaining agreement.
DOLD FOODS, INC.
Stephen E. Wamser, Esq., for the General Counsel.
Joseph P. Carey, Esq., of White Plains, New York, for the
Respondent.
DECISION
STATEMENT OF THE CASE
STEPHEN J. GROSS , Administrative Law Judge. Re-
spondent Dold Foods , Inc. operates a food processing
plant in Wichita, Kansas . Dold and United Food and
Commercial Workers International Union , AFL-CIO &
CLC, District Local 340, as representative of Dold's pro-
duction, distribution , and maintenance employees, were
parties to a collective -bargaining agreement that expired
in November 1981. Bargaining toward a new contract
began in October 1981. But the employees became dissat-
isfied with the results of the bargaining , and in March
1982 most of Dold's employees went out on strike. Bar-
gaining between Dold and Local 340 continued. Mean-
while Dold replaced the striking workers with new em-
ployees.
About 8 months after the strike began Local 340 con-
cluded that the strike was lost . It thereupon offered to
accept the Company's remaining contract terms and, on
behalf of the strikers , offered to have the striking em-
ployees return to work. At issue here are the nature and
timing of those offers by the Union and of Dold's re-
sponses to the offers.' Specifically:
1 This proceeding began on November 8, 1982 , with the filing of a
charge by Local 340 in Case 17-CA-11309 The Union filed a second
charge, Case 17-CA-11309-2, on December 1 and then amended it on
December 7. A complaint and order consolidating cases were issued on
December 23.
(1) According to the General Counsel, on October 23
and then again in early November , the Union agreed to
all terms of the Company 's proposed collective -bargain-
ing agreement . (Unless otherwise specified , all events re-
ferred to in this decision occurred in 1982 .) Given that
agreement, claims the General Counsel , Dold was obli-
gated to execute a written contract with the Union em-
bodying its terms . Dold has refused to do so.
(2) If the Union unconditionally offered to return the
strikers to work, Dold came under an obligation to fill
job openings with the employees who had been striking,
and to do so in order of seniority . The General Counsel
contends that Local 340 did make that kind of uncondi-
tional offer and that Dold failed to respond appropriate-
ly.
My conclusions about these contentions are that Local
340 did not in fact accept Dold's contract proposals on
October 23 ; and that while the Union subsequently did
purport to accept Dold's proposals , Dold was not re-
quired to respond to the Union 's acceptance because by
then Dold had come to believe , based on appropriate
considerations , that Local 340 did not represent a majori-
ty of Dold's employees . On the other hand, in early No-
vember Dold did wrongfully fail to honor the Union's
bona fide offer to return the striking employees to
work.2
A. Did the Union Accept Dold 's Contract Offer on
October 23
Attorney Frank Hylton represents Local 340 in its
dealings with Dold. Joseph Carey, also an attorney, rep-
resents Dold on labor matters. Hylton and Carey met
privately on October 23 at a hotel in Wichita. Five Dold
officials-all members of Dold's negotiating committee-
were also present in the hotel . From time to time Carey
would report back to that committee about his conversa-
tions with Hylton and would receive instructions from
the committee. After the completion of Hylton and
Carey's private discussions, Hylton and Union Business
Agent Phillip Immesote met with Carey and Dold's ne-
gotiating committee.
A couple of things about the events of October 23 are
clear. One has to do with a Dold contract proposal re-
garding an employee pension plan. Dold had earlier pro-
posed that its employee pension plan be changed in vari-
ous ways. Hylton had expressed concern that such
changes might be unlawful and might therefore open
both Dold and Local 340 to legal action by employees.
Hylton had said he would look into the matter. At the
October 23 meeting Hylton told Dold's representatives
that he had not yet satisfied his concerns about the pen-
sion problems, but that he would do so soon and advise
Carey of his conclusion.
It is also clear that in the course of the meeting Hylton
asked that the parties meet again as soon as possible. In
response to that request the parties agreed to hold a
meeting on November 3.
What is less clear is whether at any time during the
course of the October 23 meeting, or during the tele-
2 Certain errors in the transcript have been noted and corrected.
DOLD FOODS 1327
phone calls setting up the meeting , any representative of
the Union agreed to accept the Company's terms for the
collective-bargaining agreement . Hylton testified that he
said that the Union was accepting the last proposal by
the Company, first in the premeeting telephone conversa-
tions and then privately to Carey during the October 23
meeting . Carey flatly denied Hylton's contention. All the
members of Dold's committee testified. In no case does
their description of the October 23 negotiations refer to
any acceptance by the Union of Dold's contract propos-
als. Immesote (the union official) did not testify.
As will be discussed more fully below, my conclusion
is that no representative of Local 340 stated to Dold that
the Union accepted Dold's contract proposals. Assuming
that a union representative had made such a statement, it
is evident that no contract existed when the October 23
meeting closed . The point is that Hylton had previously,
specifically voiced concern about Dold's pension plan
proposal and then, on October 23, said that he had not
yet looked into the matter, that his concerns remained,
that he would undertake to resolve the matter soon, and
that he would call Carey as soon as it was resolved.
There is simply no way to square that kind of behavior
with a purported acceptance of all of Dold's terms. That
is particularly obvious since on October 23 there were
only two Dold proposals left to discuss: One involving
medical insurance, and the pension plan proposal that
Hylton said he wanted to consider further. All other
contract provisions had either already been agreed to or
had been unilaterally implemented by Dold on the
ground that impasse had been reached.
B. Did a Union-Dold Contract Come into Being on
October 26
Hylton telephoned Carey on October 26 to say that he
had determined that Dold's adoption of its pension plan
proposal would be unobjectionable. That raises the ques-
tion of whether Hylton had ever said that Local 340 ac-
cepted Dold's most recent contract proposals. If Hylton
had said that, arguably a contract between Dold and
Local 340 would have come into being when Hylton
told Dold that he no longer objected to the pension plan
change. As I add up the evidence, as late as October 26
Hylton had never told Dold that Local 340 accepted
Dold's contract proposals. (In November Local 340 did
communicate just such a message to Dold, which will be
covered later in this decision.)
First, nothing in the record suggests that Hylton
should be credited over Carey in the case of conflicts in
their testimony. Rather, Carey was more credible than
Hylton. Hylton had significant memory lapses; Carey did
not. Carey's version of events was often supported by
other witnesses; Hylton's was not.
Second, if Hylton, on behalf of Local 340, had told
Carey that the Union accepted Dold's contract propos-
als, one would expect Hylton to have asked for confir-
mation that a contract had been agreed on-first from
Carey during the premeeting telephone calls; then from
Carey at the meeting on October 23; then from Dold's
committee on October 23; and finally from Carey during
the telephone conversation of October 26-but Hylton
never did so.
Third, the Union at no point provided Dold with a
written contract to execute.
Fourth , during the course of the October 23 meeting
the parties agreed , at the Union's request, to hold an-
other meeting on November 3. The Union did not indi-
cate why it wanted that meeting; however, the request
for the meeting suggests that the union representatives
thought that there was more to be accomplished before a
contract could be signed.
C. Was Dold Justified in Doubting That Local 340
Represented a Majority of the Bargaining Unit
Employees
On November 2 Dold called the Union to cancel the
November 3 meeting . Dold has continued to refuse to
meet with Local 340 and has refused to enter into a col-
lective-bargaining agreement with the Union even
though the Union sent a telegram to Dold on November
4 specifically accepting all of Dold's contract proposals.
The General Counsel argues that Dold has thereby failed
to satisfy its obligation to bargain with the Union and
has accordingly violated Section 8(a)(5) of the Act.
Dold, however, contends that since at least as far back as
November 2 it has had good reason to believe that Local
340 does not represent a majority of Dold's bargaining
unit employees. If Dold did believe, in good faith, that
Local 340 had lost its majority status and, further, if that
belief was based on "sufficient objective considerations,"
Dold was under no obligation to enter into a collective-
bargaining agreement with the Union or to bargain with
the Union at all.3 The burden is on Dold to prove such
"objective considerations," and "the burden is a heavy
one."4
Employee categories-strikers, union members who did
not strike, returned strikers, and replacements: As of early
November, 229 Dold employees were working in bar-
gaining unit jobs, as follows:
Members of the bargaining unit at the time the
strike began but who continued to work-12 em-
ployees
Members of the bargaining unit who went out on
strike but who subsequently abandoned the strike
and returned to work-16 employees
Employees hired by Dold after the strike began
as permanent replacements for the strikers-201 em-
ployees
In March 1982, 221 employees had gone out on strike.5
As indicated in the table above, however, 16 of the strik-
8 Windham Community Memorial Hospital, 230 NLRB 1070, 1073
(1977), enfd. 577 F.2d 805 (2d Cir. 1978). Other cases refer to "a suffi-
cient objective basis for a reasonable doubt of the union's majority status"
(Pennco, Inc, 250 NLRB 716 (1980), enfd. 684 F 2d 340 (6th Cir ), cert
denied 459 U S 994 (1982)), the need for the "employer's good faith
belief' to "be supported by objective considerations which are clear,
cogent, and convincing" (Pennco, supra, 684 F.2d at 342), and the need
for the employer to "present clear and convincing evidence of loss of
union support capable of raising a reasonable doubt of the union's con-
tinuing majority" (Windham, supra, 577 F 2d at 811)
4 Pennco, supra , 250 NLRB at 717
5 As of March 1, 1982, Dold employed 233 bargaining unit employees.
As noted above, 12 of those employees never participated in the strike
Continued
1328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing employees later abandoned the strike. That meant
that as of early November there were a maximum of 205
strikers; however, according to Dold's president, Steven
Ritter, far fewer then 205 employees then remained on
strike. Ritter based that view on an assertion made by
Union Business Agent Immesote . As of September, Im-
mesote reported, 30 percent of the Dold employees then
out on strike had abandoned any interest in their jobs at
Dold.
Ritter testified that not long after Immesote made that
remark, he began to focus on whether the Union repre-
sented a majority of the Company's employees. Ritter
proceeded on the following assumptions.
1. The striking employees remained members of Dold's
bargaining unit , but only if they intended to return to
work at Dold.6
2. Given Immesote's statement , only 144 strikers (70
percent of 205) ought to be deemed to be part of the bar-
gaining unit.
3. All of those 144 strikers could be assumed to be in
favor of representation by Local 340.7
4. The 12 employees who, though members of the bar-
gaining unit on March 1, never went out on strike,
should also be deemed to support Local 340.8
5. Similarly, the 16 strikers who subsequently aban-
doned the strike had to be deemed supporters of Local
340.9
6. As for the 201 employees hired since the beginning
of the strike as permanent replacements, on the other
hand, Ritter took the position that all could be assumed
to oppose representation by Local 340.
Under those assumptions, while 172 members of the
bargaining unit still favored representation by Local 340,
201 employees-a clear majority-opposed representa-
tion by Local 340. Thus, if the assumptions that Ritter
made on the way to arriving at his totals were appropri-
ate ones, Dold did not violate Section 8(a)(5). Two of
those assumptions merit scrutiny: First, the assumption
that 30 percent of the strikers could be deemed not part
of the bargaining unit on the basis of Immesote's remark;
and second, the assumption that all 201 replacement em-
ployees opposed representation by Local 340.
Immesote's 30-percent figure: A striker loses his mem-
bership in the bargaining unit if he abandons his interest
(The above numbers are taken from the testimony of a Dold witness
Other evidence provides somewhat different numbers See, e g , Jt. Exh
15. But the differences are immaterial.)
a Striking employees remain members of the bargaining unit, whether
they have been replaced , as do replaced exstrikers who are awaiting job
openings in order to return to their former employment . See, e.g., Bio-
Science Laboratories v. NLRB, 542 F 2d 505 (9th Cir 1976), enfg 213
NLRB 171 (1974) As will be discussed in more detail below, however,
strikers who abandon interest in returning to their former jobs thereby
lose their membership in the bargaining unit
9 "There is a presumption that strikers . being union members,
continued to support the Union." Surface Industries, 224 NLRB 155, 163
(1976).
8 The "mere failure of employees to support a strike does not give
rise to the presumption that these employees have repudiated the Union
as their bargaining representative " Seeburg Corp, 192 NLRB 290, 305
(1971) Accord- Mobile Home Estates, 259 NLRB 1384, 1404 (1982), enfd
in pertinent part 707 F 2d 264 (6th Cir 1983).
9 See Cutten Supermarkets , 220 NLRB 507 (1975), Seeburg, supra,
Mobile Home Estates, supra
in returning to his former job. 10 Strikers are presumed to
retain an interest in returning to their jobs unless there is
evidence to the contrary." The question is whether
Dold had sufficient grounds to reasonably conclude that,
as of early November, 30 percent of the strikers no
longer wanted to return to work at Dold.
As noted earlier, Ritter concluded that over 60 strikers
had abandoned any intention to return to Dold. That
conclusion was based on a remark that Union Business
Agent Immesote made to Ritter in September during the
course of a telephone conversation. Immesote did not
testify; however, according to Ritter's undisputed testi-
mony, Immesote-
reported 30 percent of the people will not return to
work for one reason or another. I think he men-
tioned that some had retired and some had moved
out of the state, some had taken other jobs, and
some had no intention of returning to Dold
Foods.12
It is not altogether clear that Dold had the right to
rely on Immesote's statement in determining whether
Local 340 represented a majority of the bargaining unit
employees. For one thing, Immesote made it clear to
Ritter that the 30-percent figure was an approximate
one.13 For another, given the context of the conversa-
tion, it is possible that Immesote deliberately used an in-
flated figure. (Immesote wanted Ritter to agree to recall
the striking employees, even if that meant displacing the
replacement employees. Immesote's purpose in reporting
that many strikers would not be returning to Dold was
to indicate to Ritter that even if Dold did recall all the
striking employees, not all the replacement employees
would have to be laid off.)
Nonetheless I think Ritter made appropriate use of Im-
mesote's remark. Immesote represented the striking em-
ployees and could be expected to be in a better position
than anyone else to know about the individual strikers'
circumstances and future plans. Moreover at the time
Immesote made the remark the strike had lasted 7
months, it had been unsuccessful at shutting Dold down,
and all or nearly all the strikers had been replaced.
Given that situation one would expect that some of the
strikers would have chosen to leave Dold permanently.
1O E.g , Belt Supermarket, 260 NLRB 118 (1982), P.B.R. Co, 216
NLRB 602 (1975)
ii Bio-Science Laboratories, supra, P.B.R. Co, supra
12 The question of whether an employee has abandoned his job (for
purposes of determining bargaining unit status) hinges on the employee's
intent Evidence of actions such as moving beyond commuting distance,
retirement, and accepting a permanent position elsewhere is commonly
found to show the requisite intent. See, e g., Belt Supermarket, supra.
is In Randle-Eastern Ambulance Service, 230 NLRB 542 (1977 ), enfd.
in part 584 F 2d 720 (5th Cir 1978), a union official had told the employ-
er that "50 to 25 or 20 percent" of the strikers would not be returning to
work The Board refused to take that statement into account in determin-
mg whether the employer had a reasonable basis for doubting the union's
majority status That ruling was based at least in part on factors not
present here (such as the fact that some of the strikers who purportedly
abandoned their employment at the employer might have done so be-
cause of the employer's unfair labor practices). See 230 NLRB at 552,
reversed on this point 584 F 2d at 728-729
DOLD FOODS
Immesote's figure merely provided a specific-and not
surprising-figure for Ritter to work with.14
The union views of the replacement employees: To reca-
pitulate , Dold President Ritter assumed that , as of the
end of October 1982 , all persons who had been em-
ployed by the Company just as the strike began and who
remained members of the bargaining umt-172 in all-re-
mained in favor of representation by Local 340. All 201
replacement employees , said Ritter , could be assumed to
oppose representation by that Union . Dold's defense,
therefore , hinges on Ritter 's assumption about the re-
placement employees ' views concerning representation
by Local 340.
D. Current Board Law
The most clear-cut striker replacement situation is
where the employer claims that employees hired to re-
place strikers , and who had to cross a picket line to get
to work, should be assumed , without any further informa-
tion , to be opposed to representation by the incumbent
union . Given those bare facts , the Board will reject the
employer 's claim and instead presume that the replace-
ment employees "support the [incumbent union] in the
same ratio as those whom they have replaced ." 15 More-
over , the Board has adopted the same position even
where additional facts increase the possibility that the re-
placement employees do not favor representation by the
incumbent union . In Pennco , for example , the replace-
ments not only had to cross a picket line, on occasion
they were met by violence from the strikers . According
to the Board , however, "the occurrence of some vio-
lence on the picket line is, at best, one factor weakening
the presumption of majority status but not alone rebut-
ting it." 16
In Randle-Eastern some of the striker replacements en-
countered violence at the picket line and , in addition, at
the bargaining table the union demanded that the re-
placements be laid off to make room for the strikers. Yet
there too the Board concluded that the replacements
14 Ritter testified that, once the Company did begin recalling strikers,
34 percent failed to return to work as they were recalled. That , suggested
Ritter , confirmed Immesote's 30-percent estimate . But that 34-percent
figure was developed considerably after Dold stopped bargaining with
Local 340 It accordingly sheds no light on whether Dold based its refus-
al to bargain on appropriate grounds See I T Services, 263 NLRB 1183
( 1982), Pennco, Inc., supra, 250 NLRB at 718 fn 16.
15 Windham Community Memorial Hospital , supra. Accord National
Car Rental System , 237 NLRB 172 ( 1978), enf denied 594 F 2d 1203,
1206 (8th Cir 1979) The Board did not always hold this view. See
S & M Mfg Co, 172 NLRB 1008 (1968) ("As the only employees then
working were . newly hired employees who had crossed the picket
line to go to work and who are not shown to have manifested their sup-
port for the Union, it cannot be found that there were any union adher-
ents among the employees working (on the date in issue ]"); Titan Metal
Mfg. Co, 135 NLRB 196 , 215 (1962) (replacements presumed not to
favor representation by the incumbent union "[absent] evidence that any
of the replacements had authorized the Union to represent them"), and
Jackson Mfg Co, 129 NLRB 460, 478 (1960) ("most improbable" that
striker replacements favored representation by the incumbent union) For
a discussion of the views of various circuit courts on the matter see the
opinion of Justice White ()oined in by Justices Blackmun and Rehnquist)
dissenting from the Supreme Court 's denial of the certiorari petition in
Pennco, supra, 459 U S 994 (1982)
16 250 NLRB at 718 fn 16
1329
"are presumed to support the union in the same ratio as
those whom they have replaced." 117
In I T Services, however, the Board ruled in the em-
ployer 's favor . The issue again was whether the employ-
er could presume that replacement employees opposed
representation by the incumbent union . In I T Services,
apart from the fact that the replacement employees had
to cross a picket line to get to work : (1) the union de-
manded that the replacements be discharged , the replace-
ment employees knew of that demand , and the union
made the demand even though "[T]here was room for
the strikers even if no replacements were let go"; 18 (2) a
company dispatcher testified that with minor exception
,.each of the strike [r] replacements . . . told him that
they did not want the union to represent them";19 and
(3) "almost on a daily basis" the replacement employees
were subjected to threats, racially oriented taunts, and
violence by strikers , sometimes under circumstances indi-
cating that the union supported those acts.
The Board concluded that, given all these circum-
stances , the employer "had an adequate objective basis to
support a good -faith doubt of the Union 's majority."
E. The Facts at Hand
Dold does not take issue with cases such as Windham
and Pennco . Rather , the Company argues that Ritter's
conclusions about the anti-Local 340 views of the re-
placement employees was warranted given the facts at
hand and the Board's view as expressed in I T Services
Local 340's demand that replacement employees be fired.
About 10 weeks into the strike (in May 1982) the Union
demanded that "all permanent replacement employees be
fired to make room for striking employees if a contract is
ever signed ."20 Dold advised all of its employees-strik-
ers and nonstrikers-of that position.
As touched on earlier, by September the Union had
changed its position . It then asked only that sufficient re-
placement employees be displaced to make room for the
144 or so strikers still interested in returning to Dold. Fi-
nally, during the last bargaining session (on October 23),
the Union again asked that sufficient replacement em-
ployees be let go to make room for the strikers .21 That,
however, was merely a pro forma request . Local 340's
main argument at that bargaining session was that Dold
should displace the 32 replacement employees who were
still in a probationary status to make room for a like
number of strikers.
Dold's subsequent letter to employees stated:
At the October 23 Session most of the time was
spent . . . on the subject of who has the legal right
to hold the 217 jobs in the bargaining unit . Manage-
17 230 NLRB at 552.
is I T Services, supra, 263 NLRB 1183 , 1185. (In Randle-Eastern, in
contrast, there is no indication that the replacement employees knew of
the union's demand that they be laid off to make room for the strikers )
19 Id. at 1186
20 The quote is from a letter from Dold's chairman of the board to all
Dold employees, dated May 13, 1982 (Jt Exh 19). No one disputes the
accuracy of that letter
21 Union negotiator Hylton denied making that request I credit Dold
Attorney Carey in that regard
1330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment, once again, repeated that no permanent replace-
ment employees will lose their jobs to returning strik-
ers.22
Statements by employees: According to Ritter, nonstrik-
ing employees repeatedly asked "how do we get rid of
the union and how do we have a vote."23 Ritter did not
specify how many employees made such comments nor,
with one exception, did he identify the employees in-
volved. No employees testified on this (or any other)
subject.24
Violence. On 12 separate occasions Dold officials found
nails on the company driveways near the picket line.
Dold reimbursed various nonstriking employees a total
of $425 for damage to tires resulting from picket line ac-
tions . Dold received 47 or 48 reports of strikers doing
minor damage to nonstriking employees ' automobiles,
and of threats and verbal abuse by strikers.
Statements by the Union about whom it represented: At a
bargaining session on October 13, a union official said
that "they [the union negotiators] do not care about the
permanent replacement employees and that they are not
bargaining for them."25 Dold told all of its employees
about that statement.
F. Conclusion-Dold's Belief About the Views of the
Replacement Employees
How the facts here compare to I T Services: In I T Serv-
ices, the strikers' attempt to intimidate the replacement
employees and the violence the strikers directed against
them was pervasive. And the Union itself supported at
least some of that activity. At Dold the manifestations of
striker hostility were much less extreme, and no one has
shown that Local 340 was in any way responsible for
any acts of striker violence.
In I T Services the union never relented in its demand
that all replacement employees be terminated. Local 340
at first demanded the same of Dold. Then, as the strike
drew to an end, the Union virtually suggested that 30
percent of the replacement employees be kept on. The
Union ultimately retreated to the position that the Com-
pany need discharge only those 32 replacement employ-
ees who were so new at Dold as to still be in a proba-
tionary status.
22 Letter dated October 25, 1982 , Jt Exh 19 (emphasis in original)
The letter is wrong in statmg that the Union contended that the strikers
had "the legal right" to all 217 bargaining unit jobs That contention was
made only in respect to the 32 positions held by the probationary em-
ployees Given the Union 's request that sufficient replacement employees
be displaced to make room for all strikers who wanted to return, the
error is insubstantial
23 Tr 185, see also Tr 200
24 Dold employees filed a decertification petition on November 19,
1982 That occurred after Dold refused to bargain with Local 340 and
accordingly is irrelevant to whether Dold had sufficient basis to doubt
Local 340's majority status See I T Services, supra Moreover a decertifi-
cation petition does not, in itself, provide a basis for doubting a union's
majority status . Walker Die Casting v NLRB, 682 F 2d 592 (6th Cir
1982), Taurus Waste Disposal, 263 NLRB 309 (1982)
25 The quote is from Dold 's October 25 letter to employees, supra
Ritter testified that union officials repeatedly made such statements No
party denies the accuracy of the statement in the letter or of Ritter's testi-
mony on the subject
Finally, in I T Services an employee credibly testified
that almost all the replacement employees had said that
they opposed representation by the Union . Here we have
only Ritter 's testimony that some unspecified number of
Dold employees had asked how they might get rid of the
Union.26
In sum , I T Services in no way compels the conclusion
that Dold had sufficient basis to warrant the conclusion
that Local 340 lacked a majority support . Nonetheless, I
think that the facts add up to so high a probability that
Dold's replacement employees opposed representation by
Local 340 that Dold's position on the matter should be
upheld.
The Factual Issue: Dold's contentions raise two broad
questions . First , purely as a factual matter is it likely that
the replacement employees opposed Local 340. Second,
even assuming that the replacement employees did
oppose representation by the Union, should the Board
nonetheless reject Dold's contention on the ground that
accepting them would conflict with the purposes of the
Act.
Turning to the factual issue, because only a scattering
of employees expressed their views on the subject to
Dold officials , Dold had no direct evidence of how the
replacement employees as a whole felt about representa-
tion by Local 340. But given the facts of the strike, it
clearly is more likely that the replacement employees op-
posed representation by Local 340 more than they fa-
vored it.
The Policies Underlying the Act: As touched on above,
however, that is not the end of the matter . In cases such
as Pennco, the Board's rejection of employer contentions
about the views of replacement employees did not rest
exclusively , or even primarily, on a determination that
the replacement employees in fact probably preferred
representation by the incumbent union . Rather, the
Board 's decisions focus on what kind of rule would best
further the policies of the Act. Specifically, in Pennco the
Board pointed out that permitting an employer to ques-
tion union majority support on the ground that replace-
ments for strikers can be assumed to oppose union repre-
sentation "would effectively impair" the right to strike
and would "disturb the delicate balance of competing
weapons which the Board and the courts have recog-
nized in the labor relations arena ."27 Similarly , in Mobile
Home Estates the Board concluded that it would "not
presume the replacements do not support a strike" be-
cause "to do so would be to overburden the right to
strike because , if that were the guide, ... an employer
could refuse to recognize the union any time there was a
strike and replacements."28
Given the policies expressed in Pennco, it may be that
employers should be permitted to act on the belief that
all of their replacement employees oppose the incumbent
26 Unquantified , nonspecific testimony about employees' statements op-
posing union representation has been rejected as valueless Seeburg Corp,
supra. (Seeburg involved union members who refused to participate in a
strike, or who abandoned it. It did not involve replacement employees
For purposes of evaluating Ritter's testimony about employee comments,
the difference is inconsequential )
27 250 NLRB at 717
28 259 NLRB at 1404
DOLD FOODS 1331
union only if each of the replacements has said so. If that
is the law then, of course, Dold did not have an ade-
quate basis on which to found its position about the mi-
nority status of Local 340.
I read cases such as Pennco and I T Services as holding
only that: (1) as noted earlier, the burden on an employer
to prove its claims about the antiunion views of replace-
ment employees "is a heavy one,"29 so that such claims
should be considered with caution and perhaps, skepti-
cism; and (2) for the employer to prevail, the facts of the
case must virtually compel the conclusion that the re-
placement employees oppose the incumbent union. My
conclusion is that Dold meets this test-but only barely.
The closeness of the question hinges on the fact that
there were only 201 replacement employees, during the
time in question, versus 172 employees who, under the
requisite presumptions , must be considered to have sup-
ported Local 340. That means that if only 15 replace-
ment employees favored representation by Local 340, the
Union had the support of a majority of the employees.
Here we have a statement by the incumbent union that
it does "not care about the permanent replacement em-
ployees" and that it is "not bargaining for them." Given
the emotions generated by strikes, that viewpoint on the
part of Local 340's officials is understandable and, per-
haps, inevitable. That, however, does not make the state-
ment less offensive to replacement employees who had
to have reacted bitterly to it. In sum, here we have an
announced union position calculated to make an enemy
of each of the replacement employees, together with
union demands that the replacements be displaced to
make way for the strikers plus property damage and
other unpleasantness suffered by the replacements as
they crossed the picket line. Even taking into account
the policies expressed in Pennco, that, as I see it, adds up
to a showing by Dold that its doubt about Local 340's
status was based on convincing objective considerations.
G. Other Matters Pertaining to Dold's Refusal to
Bargain
Dold's Good Faith: Dold first announced its doubt
about Local 340's majority status in early November. Yet
nothing had occurred at or near that time that was rele-
vant to the issue of the extent of employee support for
the Union. I accordingly have considered whether Dold
in fact had a good-faith doubt about Local 340's status.
Having considered the matter, I ford that Dold did. Dold
was not required to announce its doubt at its earliest op-
portunity. I credit Ritter's testimony that at the time
Dold announced its doubt , and at all relevant times
thereafter, Ritter believed that Local 340 was not sup-
ported by a majority of the bargaining unit.
Did Dold's representation petition temporarily relieve
Dold of the duty to bargain?: On November 3 Dold peti-
tioned the Board for an election on the ground that it
doubted the majority status of Local 340. (The Board's
decision in that matter will be discussed below.) On No-
vember 4 Dold wrote Local 340 to say that "it is the em-
ployer's position that from the filing of any petition with
the NLRB under Section 9 of the Act, further acts of
collective bargaining are inappropriate pending resolu-
tion of the question concerning representation raised by
such petition." Dold's pleadings present a similar claim-
that the pendency of its representation petition freed it
from any obligation it otherwise would have had to bar-
gain with Local 340.
The short answer to Dold's contention is that the
pendency of an employer's representation petition is ir-
relevant to the employer's duty to bargain. N. T Enloe
Memorial Hospital, 682 F.2d 790 (9th Cir. 1982), enfg.
250 NLRB 583, 587-588 (1980); Cornell of California, 222
NLRB 303, 307 (1976). Until July 1982 the filing of a
representation petition by an outside union required the
employer to cease bargaining with the incumbent. Shea
Chemical Corp., 121 NLRB 1027 (1958); however, that
changed in July 1982. Since then the filing of such a pe-
tition has not relieved an employer of its duty to bargain.
RCA Del Caribe, 262 NLRB 963 (1982). Similarly, before
September 30, 1982, the filing by employees of a decerti-
fication petition stayed an employer's duty to bargain.
Telautograph Corp., 199 NLRB 892 (1972). Since that
date employers have been required to bargain with the
incumbent union notwithstanding the pendency of a de-
certification petition. Dresser Industries, 264 NLRB 1088
(1982). Thus, even if an employer's representation peti-
tion were to be considered similar, for present purposes,
to a representation petition filed by employees or by a
rival union, Dold's petition itself would not have re-
lieved Dold of its bargaining duties.
Res judicata questions : An employer has two ways in
which to test the validity of its belief that the incumbent
union has lost majority support. One is to refuse to bar-
gain and await the unfair labor practice proceeding that
is likely to follow. Dold did that and that is what this
case is about. The second is to file a representation peti-
tion. As just noted, Dold also did that.
The standards in the two kinds of proceedings are the
same.30 That is: (1) if an employer has an adequate basis
for believing that the Union has lost its majority status,
then the employer also has an adequate basis for obtain-
ing a Board order requiring an election (and vice versa);
and (2) if an employer's claimed basis for refusing to bar-
gain is insufficient to avoid a fording that the employer
has violated the Act then, similarly, there are insufficient
grounds to grant the employer's election petition (and
vice versa).
Dold supported its election petition with many of the
documents and factual allegations it presented here-in-
eluding the fact that Dold had hired numerous replace-
ment employees and that 30 percent of the employees
who had gone out on strike no longer were interested in
returning to Dold.
The Board's Regional Director for Region 17 dis-
missed Dold's petition on November 16. According to
the Regional Director:
... it does not appear that further processing of
this petition is warranted . The evidence relied upon
by the Employer as objective considerations is in-
33 See text at fn . 4, supra. 30 United Aircraft Corp., 168 NLRB 480, 486-487 (1967).
1332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sufficient to establish that a question concerning
representation exists. Thus, barring evidence to the
contrary, new employees , including striker replace-
ments, are presumed to support the Union in the
same ratio as those whom they have replaced. See,
e.g., Windham Community Memorial Hospital, 230
NLRB 1070.
After unsuccessfully seeking reconsideration of that
Order by the Regional Director , Dold appealed to the
Board . But the Board affirmed the dismissal:
Having duly considered the matter, the Board
concluded that the allegations in Employer-Petition-
er's request for review of the Regional Director's
administrative dismissal of the instant petition are
insufficient to warrant reversal of the Regional Di-
rector's action. Accordingly, dismissal of the peti-
tion is hereby affirmed.
Given these circumstances, I have focused on whether
I should refuse to consider any of the evidence in this
proceeding and, instead, rely on the outcome of the rep-
resentation proceeding to conclude that Dold's refusal to
bargain was unlawful. On the face of it, after all, Dold
had its opportunity in the representation proceeding to
present its case about Local 340's status and accordingly
should be precluded from litigating here anything it
claimed, or could have claimed, in that proceeding. At
least one Board decision arguably supports that ap-
proach. General Marine Transport Corp., 238 NLRB 1372
(1978), enf. denied on other grounds 619 F.2d 180 (2d
Cir. 1980).
The difficulty with finding against Dold on res judica-
ta grounds is that that issue has not been litigated: None
of the parties opted to argue the question (or even men-
tion it) either in their prehearing pleadings, or at the
hearing, or on brief. And beyond that, it is not entirely
clear that the Board should preclude an employer from
fully litigating an unfair labor practice claim of the kind
here under consideration solely because of an earlier rep-
resentation proceeding. Clothing Workers v. NLRB, 365
F.2d 898 (D.C. Cir. 1966).
For these reasons-the issue was not litigated and the
outcome of cases such as Clothing Workers-I have re-
frained from passing on the impact here of the Board's
ruling on Dold's representation petition.
H. Dold's Refusal to Honor the Union 's Offer to
Return the Strikers to Work
An economic striker is entitled to full reinstatement to
his former job or to a substantially equivalent job on his,
or his representative 's, unconditional offer to return to
work. If an employer has hired permanent replacements
for the strikers , the employer need not discharge the re-
placements to make room for the returning strikers. But
the employer must , when and if a job becomes available
for which the striker is qualified , offer him that job.31 A
91 Laidlaw Corp., 171 NLRB 1366 ( 1968), enfd 414 F 2d 99 (7th Cir
1969), cert denied 397 U S. 920 (1970).
union is a representative of striking employees for such
purposes, and accordingly an employer must honor an
unconditional offer to return to work made on behalf of
strikers by their union.
According to the General Counsel, on three separate
occasions Local 340 made an unconditional offer, on
behalf of the strikers, for their return to work. The dates:
October 23, and November 4 and 11. The General Coun-
sel claims that Dold failed to respond appropriately to
those offers and that Dold thereby violated Section
8(aXl) and (3) of the Act. Dold agrees that it did not re-
instate any employee in response to any offer by Local
340. But according to Dold, the Union at no time made
an unconditional offer for the return of the striking em-
ployees.
The period October 23 to November 4: The General
Counsel argues that at the October 23 meeting represent-
atives of Local 340 made an unconditional offer to return
to work on behalf of the striking employees. Dold denies
that the Union made any such offer during that meeting.
The evidence supports Dold.
To begin with, even if the testimony of the General
Counsel's witness-Hylton-is taken at face value, the
Union made no unconditional offer at that October 23
meeting . Hylton repeatedly testified that he was the only
one to speak for the Union on the subject at the meeting,
and the only words he used that could be construed to
be such an offer were, "We are going to put the people
back to work."32
As of October 23 the strike was still in progress, with
pickets maintaining an around-the-clock vigil outside
Dold's plant; the Union had not agreed to Dold's con-
tract terms ; and another bargaining session had been set
(for November 3). In those circumstances, Hylton's com-
ment, couched in the future tense, and with the word
"unconditional" conspicuously absent, would not have
amounted to an unconditional offer to return to work,
even if Hylton's testimony on the subject was accu-
rate.3 3
In any case, I do not think that any union representa-
tive said anything about returning the employees to work
either at the October 23 meeting itself or during the tele-
phone conversations setting up the meeting . Carey flatly
denied hearing any such statement. None of the members
of Dold's negotiating team testified that Hylton (or
Union Business Agent Immesote) said anything about re-
turning the employees to work. Hylton's memory was
spotty. Nothing about the circumstances of the meeting
and its aftermath, taken as a whole, suggest that Local
340 made an unconditional offer during the course of the
October 23 meeting to return the strikers to work.
The period subsequent to November 4: On November 4
Local 340 sent the following telegram to Dold:
12 Tr. 88-89. See also Tr. 49, "We were going to . put the people
back to work," and Tr 37, "We were going to return the people back to
work "
88 At one place in his testimony Hylton did say that he had told
Carey, during the course of an October 20 telephone conversation, that
"we're going to return the employees unconditionally to work " Tr 28.
But that claim about the use of the word "unconditionally" is particularly
hard to credit, if only because it is so badly outnumbered by Hylton's
other statements about what he said
DOLD FOODS
[Local 340] accepts the employer 's most recent
proposals. The strikers hereby officially offer to
return to work unconditionally. Your immediate re-
sponse is expected and requested.
Dold responded, by telegram , that same day, indicat-
ing that it would recall strikers as vacancies arose. De-
spite that telegram, Dold did not treat the Union's No-
vember 4 telegram as an unconditional offer to return the
strikers to work. The reason for that refusal , says Dold,
is that the employees remained on strike until the room-
ing of November 8. Dold claims that that rendered the
Union's offer invalid.
A "strike" is the concerted voluntary withholding of
services.34 Accordingly an unconditional offer to return
to work and a strike's continuation after the offer are in-
consistent with one another.
Dold nonetheless violated the Act when it failed to
honor the Union's November 4 offer to return the strik-
ers to work. There is no doubt that picketing continued
until November 8; however, picketing does not necessar-
ily mean that the employees refuse to work.35 Apart
from the picketing, Dold had no reason to believe that
the Union's unconditional offer to return the strikers to
work was less than bona fide. Under the circumstances
if, because of the picketing , Dold was unsure of the
meaning of Local 340's offer to return the strikers to
work, Dold was obligated to clarify the situation by
promptly communicating with the Union. Home Insula-
tion Service , 255 NLRB 311 (1981); Soule Glass & Glazing
Co. v. NLRB, 652 F.2d 1055 (1st Cir . 1981 ). Dold, how-
ever, did not advise the Union of its concerns until No-
vember 11-a week after the Union's offer and 3 days
after the picketing stopped . That is too long a delay. In
any case, in response to Dold's November 11 message
the Union immediately confirmed it's unconditional offer.
Yet Dold continued to disregard the Union's offer.
(During this proceeding a representative of the Union
(Hylton) and the General Counsel (on brief) referred to
the "strike" as continuing until November 8. Even treat-
ing that as an admission that the work stoppage contin-
ued after November 4, I think Dold was still under obli-
gation at least to check with the Union before assuming
that the Union's offer was not unconditional. W. C
McQuaide, supra; Harris-Teeter, supra. Moreover, al-
though a Dold representative also referred to the
"strike" continuing until November 8, he indicated that
he meant only that the picketing continued until then:
Tr. 202-203.)
Dold puts forth a second reason why, it claims, it
properly treated as conditional Local 340's offer to
return the strikers to work: The unfair labor practice
charge filed against Dold by Local 340 on November 8.
The charge in question states, in part, that Dold violat-
ed the Act because Dold "refuses to return to work
84 Shelly & Anderson Furniture Mfg. Co., 199 NLRB 250, 263 (1972),
enfd . 497 F.2d 1200 (9th Cu. 1974). See also American Ship Building Ca
Y. NLRB, 380 U.S. 300, 310 (1965); Jones & Laughlin Steel Corp. v. Mine
Workers, 519 F.2d 1155 , 1158 (3d Cir. 1975).
's W. C. McQuaide, Inc., 220 NLRB 593 (1975), enfd . in part 552 F.2d
519 (3d Cir. 1977); Harris-Teeter Super Markets , 242 NLRB 132 (1979),
enfd . mem. 644 F.2d 39 (D.C. Cir. 1981).
1333
former economic strikers who have offered to return un-
conditionally." Dold claims that were it allowed access
to the General Counsel 's investigative files in the matter,
it would be able to show that by the quoted phrase the
Union intended to claim that once the Union made an
unconditional offer to return the strikers to work, Dold
came under a duty to fire any replacement employees
who were still in their probationary period in order to
make way for the strikers. (Dold did seek access to the
relevant General Counsel files but the General Counsel
denied the Company's requests .) Dold goes on from
there to argue that a claim of that nature is inconsistent
with an unconditional offer to return to work.
I will assume , for present purposes , that Dold's read-
ing of Local 340's unfair labor practice charge is accu-
rate . That is, the charge was the embodiment of a union
contention that the Act required Dold to lay off the pro-
bationary employees to make room for returning strikers.
That assumption , however, is of no assistance to Dold. It
is true, as Dold points out, that Dold could have lawful-
ly ignored Local 340's offer if the Union had conditioned
its cessation of the strike on the displacement by Dold of
any group of replacement employees ; however, that has
no relationship to the filing of a charge with the Board.
Local 340 attached no conditions whatever to its cessa-
tion of the strike . As for the charge , a union has the
right to test the lawfulness of an employer 's recall proce-
dures, and to do so by filing a charge with the Board,
without thereby entitling the employer to refrain from
recalling the ex-strikers . Indeed had the matter been liti-
gated I would be obligated to fmd that, by failing to
recall striking employees because of the Union's charge,
Dold violated Section 8(aXl) and (4). See , e.g., NLRB v.
Scrivener, 405 U.S. 117 (1972); NLRB v. Globe Mfg. Co.,
580 F.2d 18 (1st Cir. 1978); Vulcan-Hart Corp., 248
NLRB 1197 (1980), enfd . in part 642 F.2d 255 (8th Cir.
1981).
CONCLUSIONS OF LAW
1. Dold violated Section 8(axl) and (3) of the Act
when it failed to reinstate employees who had engaged
in the strike pursuant to the unconditional offer to return
to work made on November 4, 1982, by the striking em-
ployees through their representative, Local 340.
2. Dold has not otherwise been shown to have violat-
ed the Act.
THE REMEDY
As just stated, Dold wrongfully failed to treat as valid
Local 340's unconditional offer of November 4 to have
the strikers return to work. If Dold had treated the
Union's November 4 offer as valid , some of the striking
employees would have been recalled sooner than they in
fact were. (Issues such as the number of such employees,
their identity, and the extent of the delay of their recall
shall be left for resolution in the compliance stage.) Dold
will be required to make the affected employees whole
for any loss of earnings and other benefits they may have
suffered by reason of the Company's discrimination
against them . Backpay will be computed as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
1334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as computed in Florida Steel Corp., 231 NLRB 651 the Board's Order, and to take various other actions re-
( 1977). The Company will also be required to cease and lated to the above requirements.
desist from its unlawful acts, to notify its employees of [Recommended Order omitted from publication.]