F.L. Thorpe & Co.

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 147 (N.L.R.B. 1994)

147
315 NLRB No. 22
F. L. THORPE & CO.
1 All dates hereafter are in 1991.
2 Smith first communicated her desire to return to work to Man-
ager Sandy Sanke, who is Terry Sanke’s wife. Sandy Sanke told
Smith she could come back but should clarify this with Tribble.
F. L. Thorpe & Co., Inc. and United Steelworkers
of America, AFL–CIO–CLC. Case 18–CA–
11878–1
September 30, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On September 23, 1992, Administrative Law Judge
Burton Litvack issued the attached decision. The
Charging Party filed exceptions and a supporting brief
and the Respondent filed cross-exceptions and a sup-
porting 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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The primary question presented in this case is
whether the Respondent’s unfair labor practices, com-
mitted during the course of a strike which all parties
concede was an economic strike at its inception, con-
verted that strike into an unfair labor practice strike.
For the reasons which follow, we find, contrary to the
judge, that the unfair labor practices did convert the
strike.
Factual Background
The facts, as more fully set forth in the judge’s deci-
sion, are as follows. The Respondent manufactures and
sells Black Hills gold jewelry. The Union was certified
on July 27, 1990; the parties met 14 times over the en-
suing 9 months in an unsuccessful effort to negotiate
a first contract. On April 27, 1991,1 after learning that
a strike was possible, Respondent’s general manager,
Terry Sanke, sent a letter to all unit employees advis-
ing them that they had the right to withhold their serv-
ices in connection with a strike or to cross the picket
line and that the Respondent would continue to operate
and had the right to hire permanent replacements to do
the employees’ jobs.
On April 28, Supervisor Lamphere called employee
Cox to tell her that the Union had decided to call a
strike, that ‘‘they’’ would be working and would give
her a ride to work, but that she had to resign from the
Union in order to go back to work during a strike. Cox
told Lamphere that she had decided to join the strike,
and repeated Lamphere’s remarks to at least six other
employees.
On April 29, 67 of the 82 unit employees went on
strike. That same day, Terry Sanke sent all employees
a letter advising them that they had three options: to
refuse to cross the picket line, in which case they
could not be disciplined by the Respondent; to cross
the picket line, in which case they could be fined by
the Union; or to resign from the Union and return to
work. The letter stated that employees who wanted to
cross the picket line and avoid a union fine should re-
sign from the Union first. Sanke included with the let-
ter a sample resignation form with instructions for
completing and returning it to the Union.
On May 11, striking employee Linda Smith called
Supervisor Tribble because Smith wanted to return to
work.2 Tribble told Smith that in order to return to
work she had to first sign a union resignation form and
place it in the mail. Tribble also stated that Smith’s an-
niversary date would be pushed back for every week
she was out on the picket line. As a result of having
this condition placed on her return to work, Smith de-
cided to remain on strike. In addition, Smith testified
that in July she told a union official that the Respond-
ent had refused to reinstate her unless she first re-
signed from the Union.
Shortly after the May 11 conversation with Tribble,
Smith told fellow striking employee Kruse what
Tribble had said. Kruse called Tribble herself, who
stated that Kruse had to sign a union resignation form
and mail it, after which she could return to work.
Tribble subsequently told Kruse that her anniversary
date would be set back a week for every week she
stayed out on strike. Kruse decided not to return to
work because she did not want to lose the privilege of
union membership.
The striking employees picketed the Respondent’s
plant on most if not all days of the strike, and there
was much shouting back and forth between the picket-
ers and Sandy Sanke in particular. In this regard, on
several occasions in June, July, and August, Sanke
shouted to employees such remarks as that they did not
have jobs there anymore, that they were fired, that a
particular employee was a ‘‘jobless wonder,’’ and that
the strikers should go find a job and get a life.
These statements were widely discussed by the strik-
ers, both on the picket line and at union meetings. Em-
ployee Theresa Otto testified that Sandy Sanke’s re-
peated statements that the strikers were fired and did
not have jobs were discussed at every union meeting
during the strike, with employees asking many ques-
tions about whether strikers could be fired or not and
whether there was anything they could do about
Sanke’s constantly telling them they had no jobs. Sig-
nificantly, Otto also testified that, after being subjected
to Sanke’s remarks, the employees were so angry that
‘‘if we don’t get a fair contract, it wouldn’t bother us
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 On September 30, the Respondent advised Kruse and Smith that
it would reinstate them, on request, to their former or substantially
equivalent positions. On October 7, the Respondent additionally
promised to pay both employees all backpay due under the Act.
Smith and Kruse did not respond to these offers prior to the strike’s
end.
4 The Respondent did not call any witnesses. The judge credited
all of the General Counsel’s witnesses except to the extent that two
witnesses’ testimony is in conflict.
5 The judge found that Sanke’s statements to picketing employees
were not of this character, however, inasmuch as no employee was
actually terminated.
if they went under.’’ Employees Smith, Kruse, and
Roxanne Boyer also testified that Sanke’s statements
were discussed at union meetings. Similarly, employee
Katherine Bergstrom testified that the strikers’ con-
cerns had changed since the beginning of the strike, in
that they wanted to go back as a group, displacing the
permanent replacements hired by the Respondent.
On August 8, the Respondent posted and sent to
each striking employee a letter stating that Respond-
ent’s management had not made or implied any state-
ments that strikers no longer had jobs with the Re-
spondent, explaining their rights as economic strikers,
and telling them that any information they had to the
contrary was inaccurate and should be disregarded.
However, the judge found that Sandy Sanke continued,
at least throughout the month of August, to tell strikers
that they did not have jobs, to go home, that a striker
was a jobless wonder, and that they were fired.
On October 4, after unfair labor practice charges had
been filed concerning Tribble’s conditioning reinstate-
ment on employees’ resigning from the Union, the Re-
spondent again wrote to all employees advising them
that no striking employees had been or would be dis-
charged because they ‘‘choose to exercise their lawful
right to strike.’’ The October 4 letter stated that any
contrary statements should be disregarded, and that re-
turning strikers would be accorded all rights provided
by the National Labor Relations Act. The letter also
advised the employees that resignation from the union
‘‘is not and never has been’’ a condition for returning
to work, but did not mention the threats to set back
strikers’ anniversary dates.3
A subsequent letter dated October 8 disavowed any
threat to set back anniversary dates, as well as again
disavowing any statements that strikers were fired or
had to resign from the union in order to return to
work. This letter further stated that ‘‘[i]f such actions
and statements were made, they were unlawful,’’ and
promised not to engage in like future conduct. Al-
though not mentioned by the judge, the letter specifi-
cally assured employees that they had not and would
not be discharged for striking, that they could return
to work without resigning from the Union, and that
their anniversary dates had not been altered because of
the strike. On October 11, following the receipt of
these letters, the Union unconditionally offered to re-
turn its members to work. As of October 14, the Re-
spondent had 36 permanent replacements and 19 em-
ployees who had either never joined the strike or had
previously abandoned it; 21 former strikers received
reinstatement letters and 11 accepted reinstatement.
Thus, after the reinstatement offers had been accepted,
the Respondent employed 36 permanent replacements,
19 cross-over employees, and 11 former strikers.
The Judge’s Decision
The judge found that Lamphere’s statement that
strikers had to resign from the Union before they could
return to work, Tribble’s statement that the strikers’
anniversary date would be set back for each week they
were on strike, and Sandy Sanke’s statements that the
strikers no longer had jobs, no longer worked at the
plant, or were fired, all violated Section 8(a)(1). In ad-
dition, the judge found that the Respondent violated
Section 8(a)(3) and (1) by refusing to reinstate employ-
ees Smith and Kruse unless they first resigned from
the Union. There are no exceptions to these findings.4
However, the judge rejected the General Counsel’s
contention that these unfair labor practices prolonged
the strike and thus converted it into an unfair labor
practice strike. The judge recognized that the Board
has found that requiring strikers to resign from the
Union as a condition of reinstatement is ‘‘an unfair
labor practice that, by its nature, has a reasonable tend-
ency to prolong the strike.’’ Gaywood Mfg. Co., 299
NLRB 697, 700 (1990).5 Nevertheless, the judge found
that all of the former strikers who testified stated that
their discussions with other strikers concerning con-
tinuing the strike focused on economic concerns, and
that the unfair labor practices were never cited in such
discussions as a reason for continuing the strike. The
judge also found that the unlawful conditions placed
on reinstatement were not disseminated among unit
employees sufficiently to support a finding of conver-
sion. Thus, perceiving no evidence showing that the
strikers’ subjective motivation was affected by the un-
fair labor practices the judge found that the unfair
labor practices did not prolong the strike and thus that
there was no conversion.
The Exceptions
The Union excepts to the judge’s finding that the
strike was not converted to an unfair labor practice
strike on May 12. Initially, the Union contends that the
unfair labor practices present in this case should be
deemed to have converted the strike ‘‘as a matter of
law.’’ The Union notes that the Board has found that
conditioning strikers’ reinstatement on resigning from
the union is conduct which would ‘‘necessarily delay
resolution of the strike,’’ citing Gaywood Mfg. Co.,
149F. L. THORPE & CO.
6 The Respondent also notes that, on September 30, it advised
Kruse and Smith that it would reinstate them, on request, to their
former or substantially equivalent positions and, on October 7, addi-
tionally promised to pay both employees all backpay due under the
Act.
7 In finding that these unfair labor practices did not convert the
strike, the judge relied on the Board’s decision in C-Line Express,
292 NLRB at 639, finding that the employer’s unlawful statements
that it did not want certain picketers back, would not sign a contract
with the union and would not reemploy many of the strikers, did not
objectively tend to prolong the strike because, as in this case, ‘‘there
is no evidence that the [employer’s] co-owners tried to make good
on their threats.’’ We find C-Line distinguishable, however, as that
case did not involve repeated statements, like those here, by a high
management official, that employees in fact had been terminated.
Employees, of course, would have no means of determining whether
the Respondent had taken concrete steps to process their termination,
and would have no effective means of doing so until after the strike
had ended. Thus, in contrast to the threats of future termination dis-
cussed in C-Line, Sandy Sanke’s unlawful statements could reason-
ably lead employees to think that their terminations had, in fact, al-
ready been accomplished, and hence reasonably tended to prolong
the strike even though no employee was shown actually to have
been terminated. Gulf Envelope Co., above.
above, and argues that, in Champ Corp., 291 NLRB
803 (1991), the Board also found that statements of the
sort made by Sandy Sanke would reasonably lead em-
ployees to think that they had in fact been discharged.
The Union also excepts to the judge’s finding that
there was no subjective evidence that the unfair labor
practices motivated the strikers to prolong the work
stoppage. In this regard, the Union argues that Kruse
and Smith indisputably continued their participation in
the strike because of Tribble’s unlawful condition on
their reinstatement, and that the strike might have
ended earlier if they had returned to work and other
strikers had perceived the erosion of support for the
strike at that time. The Union did not specifically ex-
cept to the judge’s findings concerning dissemination,
but rather asserts in its brief only that the evidence of
Lamphere’s prestrike unlawful statement to Cox, and
her testimony that she told six other employees what
Lamphere had said, establishes ‘‘the potential’’ that
these seven employees, in addition to Kruse and
Smith, continued on strike in part because of the unfair
labor practices. Finally, the Union contends that the
judge erred in finding that Sandy Sanke’s unlawful
statements did not prolong the strike.
The Respondent has excepted to the judge’s failure
to find that, even if the strike was converted to an un-
fair labor practice strike, it was reconverted to an eco-
nomic strike prior to the Union’s unconditional offer to
return to work. In this regard, the Respondent contends
that the August 8, October 4, and October 8 letters re-
pudiated the unfair labor practices sufficiently to com-
pel a finding that the strike was reconverted into an
economic strike prior to October 11, the date the
Union submitted an unconditional offer to return to
work on behalf of the striking employees.6
Discussion
The standard applied by the Board to determine
whether a strike has been converted to an unfair labor
practice strike is well settled. Thus, the General Coun-
sel may show that the unfair labor practices were a
factor that caused a prolongation of the work stoppage
by relying on both subjective and objective factors.
Gaywood Mfg. Co., above at 700. Further, the General
Counsel must prove only that ‘‘the unlawful conduct
was a factor (not necessarily the sole or predominant
one) that caused a prolongation of the work stoppage.’’
Id.
With regard to objective factors, the Board has rec-
ognized that ‘‘[c]ertain types of unfair labor practices
by their nature will have a reasonable tendency to pro-
long the strike and therefore afford a sufficient and
independent basis for finding a conversion.’’ C-Line
Express, 292 NLRB 638 (1989) (emphasis added). In
the instant case, we find, contrary to the judge, that the
Respondent has committed unfair labor practices of
this character. In this regard, we rely particularly on
the unfair labor practices committed by the Respond-
ent’s manager, Sandy Sanke. As set forth more fully
above, Sanke repeatedly told picketing strikers that
they were fired, that they should go home, and that
they no longer had jobs because of their protected
strike activity. As the judge noted, these statements
were widely disseminated as well. Moreover, Sandy
Sanke is one of the Respondent’s top management of-
ficials and the wife of its general manager. Particularly
in light of Sanke’s high position in the Respondent’s
managerial hierarchy, we find that her statements of
termination reasonably tended to prolong the strike.
See Gulf Envelope Co., 256 NLRB 320, 325–326
(1981).7
The judge found, and we agree, that the Respond-
ent’s conditioning the strikers’ reinstatement on their
first resigning from the Union also is conduct which
reasonably tends to prolong a strike. As the Board ob-
served in Gaywood at 700:
[T]he Respondent’s unlawful conditioning of rein-
statement on resignation from the Union is com-
parable in effect to conduct such as an unlawful
withdrawal of recognition during an economic
strike—an unfair labor practice that, by its nature,
has a reasonable tendency to prolong the
strike. . . . the Respondent’s unlawful statements
concerning resignation would necessarily delay
resolution of the strike by creating an issue to be
resolved individually by striking employees who
had made or were willing to make unconditional
offers to return to work—i.e., whether the em-
ployee should resign from the Union in order to
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In light of the Board’s clear statement in C-Line that strikers’ tes-
timony concerning their own subjective motivations for continuing
the strike is admissible, we are troubled by the judge’s evidentiary
ruling limiting the witnesses to testifying concerning discussions
they had in which reasons for continuing to strike were mentioned,
and precluding testimony concerning the strikers’ motivation which
was not expressed to other employees. In this regard, it simply does
not follow from the fact that the unfair labor practices may never
have been expressly discussed by two or more strikers as reasons to
continue the strike that the strikers’ subjective motivations did not
in fact change after the unfair labor practices were committed. In-
deed, as the Board observed in Pittsburgh & New England Trucking,
238 NLRB 1706, 1707 (1978), enf. denied in part No. 78–1781 (4th
Cir. 1979) (unpublished order), in reversing a judge’s finding that
the employer’s unfair labor practices had not converted a strike into
an unfair labor practice strike, employees may not even perceive the
unlawful nature of the employer’s actions, but ‘‘we do not believe
that the failure of the employees fully to perceive the unlawfulness
of the threat can relieve the Respondent of the responsibility for its
actions.’’ See also Gulf Envelope, above. Accordingly, we decline to
accord the absence of such discussions the controlling weight as-
cribed to it by the judge. Although not excepted to, we are also con-
cerned that the judge’s evidentiary rulings in this regard may have
contributed to several witnesses’ evident confusion when questioned
about their motivations for continuing the strike.
For the foregoing reasons, we would admit testimony of an em-
ployee’s subjective reasons for striking, as expressed by the em-
ployee at the time of the relevant events. Further, it is sufficient that
the employee expressed the thought that he/she struck because of a
given action by the employer. It is not necessary that the employee
express the view that the action was unlawful. Finally, we would not
admit testimony of an employee’s subjective reasons for striking, as
asserted for the first time at the hearing in the unfair labor practice
case.
Member Devaney finds it unnecessary to decide whether he would
admit such after-the-fact characterizations, as it is not necessary to
pass on any testimony of this character in deciding this case.
9 ‘‘‘[I]n examining the union’s characterization of the purpose of
the strike, the Board and the Court must be wary of self-serving
rhetoric of sophisticated union officials and members inconsistent
with the true factual context.’’’ C-Line, above at 638 (citing Soule
Glass, above at 1080).
10 The judge dismissed Otto’s testimony as indicating ‘‘that the
Respondent’s unlawful conduct merely had the effect of angering
and frustrating the strikers.’’ As noted above, this effect is precisely
one of the elements that the Board has focused on in finding a con-
version.
make an offer to return that would be acceptable
to the Respondent.
See also Chicago Beef Co., 298 NLRB 1039 (1990),
enfd. mem. 944 F.2d 905 (6th Cir. 1991). However,
we disagree with the judge’s finding that these unfair
labor practices were not sufficiently disseminated to
have played a role in converting the strike. Thus, as
noted above, the Respondent’s unlawful conditioning
of reinstatement was disseminated to at least six other
employees and to a union official. The Board has
found that a similar degree of dissemination was suffi-
cient to establish that unlawfully conditioning rein-
statement on resigning from the union prolonged and
thus converted a strike. See Gaywood Mfg. Co., above,
299 NLRB at 700 (employees who were unlawfully
denied reinstatement discussed the matter with some of
their fellow workers and with the union’s president).
Turning to subjective factors, we find that the record
also contains ample evidence that the strikers’ subjec-
tive motivations for continuing the strike in fact did
change as a result of the unfair labor practices. In this
regard, the Board has recognized that ‘‘‘the Board and
court may give substantial weight to the strikers’ own
characterization of their motive for continuing to strike
after the unfair labor practice’’’ C-Line Express, 292
NLRB 638 (1989) (quoting Soule Glass Co. v. NLRB,
652 F.2d 1055, 1080 (1st Cir. 1980)). Thus, and con-
trary to the judge, proof of strikers’ subjective motiva-
tions is not limited to evidence that the strikers specifi-
cally discussed the unfair labor practices as reasons for
continuing the strike.8
The Board has recognized that self-serving, after-the
fact characterizations of strikers’ motivations are to be
accorded relatively less weight in determining whether
a conversion has occurred.9 On the other hand, the
Board has never held that a conversion will be found
only where employees as a group expressly vote or de-
cide to continue on strike because of unfair labor prac-
tices. Rather, at least where, as here, the unfair labor
practices are of a type which the Board has found ob-
jectively tend to prolong a strike, the Board has in-
ferred a change in strikers’ subjective motivations
where there is evidence that the unfair labor practices
‘‘caused consternation among the striking employees.’’
Chicago Beef, above, 298 NLRB at 1040. See also
Gaywood Mfg. Co., above (same).
Applying this standard, we find ample evidence that
the unfair labor practices committed by the Respondent
caused consternation among the employees so as to
prolong the strike. As noted above, the Respondent’s
unlawfully conditioning three employees’ reinstatement
on their first resigning from the Union was dissemi-
nated to at least six other striking employees and to a
union official. Further, Sandy Sanke’s repeated state-
ments that the strikers were fired and no longer had
jobs also caused substantial consternation among the
employees, inasmuch as they were discussed at all of
the union meetings during the strike and angered the
employees enough to make them wish, in the words of
striking employee Otto, that the Respondent would
‘‘go under’’ unless they got a fair contract.10 That the
Respondent’s actions were cause for concern was fur-
ther evidenced by the Respondent’s letters sent to em-
ployees in an effort to disavow its unlawful activities.
Thus, the subjective evidence of a shift in the moti-
vation underlying the strike is not of the self-serving
after-the-fact sort cautioned against in C-Line and
Soule Glass. And, under strikingly similar cir-
cumstances, the Board has found that evidence of this
type was sufficient to demonstrate conversion. See,
e.g., Gaywood, above (conversion found, where two of
four employees who were denied reinstatement dis-
151F. L. THORPE & CO.
11 We do not suggest, however, that an unfair labor practice strike
can never be converted back to an economic strike if an employer’s
attemped repudiation of the causative unfair labor practice fails to
meet requirements for cure under the Board’s standard in Passavant
Memorial Area Hospital, 237 NLRB 138 (1978). Thus, in finding
that the unfair labor practice strike at issue in Chicago Beef had not
reverted to the status of an economic strike, the Board concluded
that the Respondent’s flawed repudiation effort ‘‘did not cure the un-
fair labor practice or otherwise remove it as a factor in prolonging
the strike.’’ 299 NLRB at 1040 (emphasis added). In Mohawk Li-
queur Co., 300 NLRB 1075 (1990), affd. sub nom. Distillery Work-
ers Local 42 v. NLRB, 951 F.2d 1308 (D.C. Cir. 1991), by contrast,
the Board found that, although a particular unfair labor practice that
had originally played a causative role in the strike at issue there was
not completely remedied under Passavant standards, the continuation
of the strike after the employer’s attempted settlement of the matter
was caused by the striking employees’ concern over other issues,
and there was no longer any causal connection between the earlier
unfair labor practice and the maintenance of the strike. 300 NLRB
at 1075 fn. 1, 1086. In the present case, unlike in Mohawk Liqueur,
there is no evidence that other issues replaced the unfair labor prac-
tices as motivation for the strike.
12 The October 8 letter disavowed any threat to set back anniver-
sary dates, as well as again disavowing any statements that strikers
were fired or had to resign from the Union in order to return to
work. This letter further stated that if such actions and statements
were made, they were unlawful, and promised not to engage in like
future conduct. The letter assured the employees that they had not
been fired for striking, that they could return to work without resign-
ing from the Union, and that their anniversary dates had not been
altered because of the strike.
cussed the matter with some of their fellow workers
and with the union’s president, who raised the issue in
discussions with the employer); Chicago Beef, above
(employee testified that he did not want to sign res-
ignation form and refused to cross picket line for that
reason, another employee testified that everyone on the
picket line was discussing the forms and they were a
matter of great importance to the striking employees,
and employer had posted and sent a notice in an un-
successful effort to repudiate unfair labor practices);
and La Famosa Foods, 282 NLRB 316 (1986) (em-
ployer’s threats and inducements were discussed
among the employees and with a union delegate, and
an employee testified that the strike was prolonged be-
cause the employees could not trust the Respondent
under those circumstances). We see no basis for distin-
guishing these cases from the facts presented here. Ac-
cordingly, for the reasons set forth above, we find that
the General Counsel has established that the strike in
this case was converted to an unfair labor practice
strike on or about May 12, 1991.
We also find that the strike was not reconverted to
an economic strike by the Respondent’s efforts to re-
pudiate its unfair labor practices. In order to reconvert
an unfair labor practice strike, an employer must ‘‘un-
equivocally repudiate and rescind [its] unlawful ac-
tions.’’ Chicago Beef, above at 1040. In Chicago Beef,
the Board found that the employer’s notice to employ-
ees, which stated that it did not require employees to
resign from the union in order to work there, was inef-
fective to reconvert the strike because it did not men-
tion the employer’s previously imposed condition on
strikers of resigning their union membership to obtain
reinstatement, and because the employer continued to
violate the Act by refusing to reinstate the strikers
even after the notice was posted.11
Applying this standard, it is clear that the Respond-
ent’s August 8 and October 4 notices to employees did
not reconvert the strike here. The August 8 letter stated
that the Respondent had not made or implied any state-
ments that strikers no longer had jobs with the Re-
spondent, explained their rights as economic strikers,
and stated that any information they had to the con-
trary was inaccurate and should be disregarded. This
letter did not mention the Respondent’s prior refusal to
reinstate strikers unless they first resigned from the
Union, nor did it mention Tribble’s statement that an-
niversary dates would be set back. Moreover, as noted
above, Sandy Sanke continued at least through the
month of August to unlawfully tell strikers that they
did not have jobs, to go home, and that they were
fired. Under these circumstances, and in light of the
letter’s failure to specifically mention any of the Re-
spondent’s prior unlawful actions, we find that the Au-
gust 8 letter did not unequivocally repudiate and re-
scind the Respondent’s unfair labor practices or other-
wise remove them as factors in prolonging the strike.
The October 4 letter, sent to strikers after unfair
labor practice charges had been filed, is similarly de-
fective. This letter again advised the employees that no
striking employee had been or would be discharged be-
cause they ‘‘choose to exercise their lawful right to
strike,’’ and went on to state that any contrary state-
ments should be disregarded and that returning strikers
would be accorded all rights provided by the Act. Al-
though the letter advised the employees that resigna-
tion from the Union ‘‘is not and never has been’’ a
condition for returning to work,’’ it did not mention
the threats to set back strikers’ anniversary dates.
Based on the letter’s failure to specifically refer to the
Respondent’s past actions, and the absence of any ref-
erence at all to the anniversary dates threats, we find
that this letter also fails to satisfy the Board’s stand-
ards as set forth in Chicago Beef.
We find it unnecessary to pass on the sufficiency of
the Respondent’s October 8 letter in this regard, inas-
much as the Union offered to return the strikers to
work on October 11, after receiving that letter.12 We
assume arguendo that the October 8 letter reconverted
the strike into an economic strike when it was received
by the strikers and the Union, and we assume further
that the Union offered to return after it received the
letter. However, there is no evidence that permanent
replacements were hired in the interim period between
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Member Devaney finds it unnessary to rely on the dates on
which permanent replacements were hired. Rather, he would find
that, in light of the short delay between transmittal of the Respond-
ent’s October 8 letter and the Union’s October 11 offer to return to
work, the strike remained an unfair labor practice strike at the time
the Union submitted its unconditional offer to return to work.
receipt of the letter and the offer to return. Thus, all
replacements were hired at a time when the strike was
an unfair labor practice strike. Under these cir-
cumstances, we find that the Respondent’s failure to
reinstate the strikers violated Section 8(a)(3) and (1) of
the Act.13
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 8.
‘‘8. The strike against the Respondent was converted
to an unfair labor practice strike on or about May 12,
1991. By failing and refusing to reinstate unfair labor
practice strikers who had not been permanently re-
placed as of May 12, 1991, and who made uncondi-
tional offers to return, the Respondent violated Section
8(a)(3) and (1) of the Act.’’
2. Delete Conclusion of Law 10.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices within the meaning of the
Act, we shall order it to cease and desist and to take
certain affirmative action designed to effectuate the
policies of the Act. We have found that the economic
strike that began on April 29, 1991, was converted to
an unfair labor practice strike on May 12, 1991. We
have further found that the Respondent violated Sec-
tion 8(a)(3) and (1) by refusing to reinstate unfair labor
practice strikers following their unconditional offers to
return to work. Accordingly, with respect to those un-
fair labor practice strikers who were not offered rein-
statement, and who were not permanently replaced be-
fore May 12, 1991, and with respect to former striking
employees Cindy Kruse and Linda Smith, whose rein-
statement was unlawfully conditioned on their resign-
ing from the Union as set forth above, we shall require
the Respondent to reinstate them immediately to their
former positions or, if those positions no longer exist,
to substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, dis-
charging if necessary all replacements hired after May
12, 1991. If, after such dismissals, there are insuffi-
cient positions available for the remaining former strik-
ers, those positions which are available shall be distrib-
uted among them without discrimination because of
their union membership or activities or participation in
the strike, in accordance with seniority or other non-
discriminatory practice utilized by the Respondent. The
remaining former strikers who were not replaced prior
to the conversion, as well as those former strikers who
were permanently replaced prior to the conversion, for
whom no employment is immediately available, shall
be placed on a preferential hiring list in accordance
with seniority or other nondiscriminatory practice uti-
lized by the Respondent, and they shall be reinstated
before any other persons are hired or on the departure
of their preconversion replacements. See Gaywood
Mfg. Co., above; Chicago Beef, above.
The employees entitled to immediate reinstatement,
as well as those unfair labor practice strikers who
made unconditional offers to return to work and were
offered reinstatement by the Respondent, shall be made
whole for any loss of earnings they may have suffered
by reason of the Respondent’s refusal to reinstate them
in accordance with their unconditional requests to be
reinstated, in the manner set forth in the judge’s deci-
sion.
ORDER
The National Labor Relations Board orders that the
Respondent, F. L. Thorpe & Co., Inc., Deadwood,
South Dakota, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discouraging membership in United Steel-
workers of America, AFL–CIO–CLC, or any other
labor organization, by failing and refusing to reinstate
unfair labor practice strikers upon their unconditional
offers to return to work who were not permanently re-
placed prior to the strike’s conversion from an eco-
nomic strike.
(b) Threatening employees that, if they engage in a
strike, they would have to resign from the Union in
order to gain reinstatement.
(c) Informing striking employees that they must first
resign from the Union in order to be reinstated.
(d) Threatening to set back striking employees’ an-
niversary dates 1 week for every week that they re-
main on strike.
(e) Informing striking employees that they are fired,
no longer have jobs, or no longer are employed by the
Respondent.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Linda Smith, Cindy Kruse, and all employ-
ees who were not offered reinstatement and were not
permanently replaced prior to May 12, 1991, full and
immediate reinstatement to their former jobs or, if
those no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges, discharging if necessary, any re-
placements hired on or after May 12, 1991.
153F. L. THORPE & CO.
14 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
National 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.’’
(b) Place any remaining former strikers, who were
not replaced prior to May 12, 1991, as well as any
former strikers who were replaced prior to May 12,
1991, for whom no employment is immediately avail-
able, on a preferential hiring list in accordance with
their seniority or other nondiscriminatory practice uti-
lized by the Respondent and offer them employment
before any other persons are hired or on the departure
of any replacements hired before May 12, 1991.
(c) Make whole Linda Smith, Cindy Kruse, and all
unfair labor practice strikers to whom the Respondent
failed to offer reinstatement upon their unconditional
offer to return to work, for any loss of earnings which
they may have suffered, in the manner set forth in the
remedy section of this decision.
(d) Preserve and, on request, make available to the
Board and its agents for examination and copying all
payroll records, social security payment records, time-
cards, personnel records, and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its Deadwood, South Dakota facility cop-
ies of the attached notice, marked ‘‘Appendix.’’14
Copies of the notice, on forms provided by the Re-
gional Director for Region 18, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that the notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act, and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected, concerted activities.
WE WILL NOT fail and refuse to reinstate unfair
labor practice strikers who were not permanently re-
placed prior to conversion of the strike.
WE WILL NOT threaten employees that they will
have to resign from the United Steelworkers of Amer-
ica, AFL–CIO–CLC, or any other labor organization,
in order to be reinstated after engaging in a strike.
WE WILL NOT inform striking employees who have
unconditionally offered to abandon a strike that they
must first resign from the Union.
WE WILL NOT threaten to set back the anniversary
dates of striking workers 1 week for each week they
remain on strike.
WE WILL NOT inform striking employees who en-
gage in picketing of our plant that they are fired, no
longer have jobs, or no longer are employed at our
plant.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Cindy Kruse, Linda Smith, and all
employees engaged in an unfair labor practice strike
who were not permanently replaced prior to May 12,
1991, and were not subsequently offered reinstatement
by us, immediate reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, discharging if necessary any re-
placements hired on or after May 12, 1991.
WE WILL place the remaining former strikers who
were not replaced prior to May 12, 1991, as well as
those former strikers who were permanently replaced
prior to May 12, 1991, for whom no employment is
immediately available, on a preferential hiring list in
accordance with their seniority or other nondiscrim-
inatory practice and offer them employment before any
other persons are hired or on the departure of any re-
placements hired before May 12, 1991.
WE WILL make whole Cindy Kruse, Linda Smith,
and all unfair labor practice strikers who were not per-
manently replaced prior to May 12, 1991, to whom the
Respondent failed to offer reinstatement upon their un-
conditional offer to return to work, for any loss of
earnings which they may have suffered, with interest.
F. L. THORPE & CO., INC.
James L. Fox, Esq., for the General Counsel.
Kevin C. Berens, Esq. and Jerylyn Bridgeford, Esq. (Berens
& Tate), of Omaha, Nebraska, for the Respondent.
Delano Lords, Staff Representative, of Rapid City, South Da-
kota, for the Charging Party.
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless otherwise indicated, all events herein occurred during
1991.
2 Respondent chose not to present any witnesses in its behalf. Ac-
cordingly, the testimony of the witnesses, who testified in behalf of
the General Counsel, was uncontroverted.
3 Respondent admits that Terry Sanke and Sandy Sanke are super-
visors within the meaning of the Act.
4 Respondent admits that Tribble and Lamphere are supervisors
within the meaning of the Act.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. On August
27 and October 8, 1991, and January 9, 1992, respectively,
an original, a first, and a second amended unfair labor prac-
tice charge in the above-captioned matter was filed by United
Steelworkers of America, AFL–CIO, CLC (the Union). Fol-
lowing an investigation, the Regional Director of Region 18
of the National Labor Relations Board, (the Board), on Janu-
ary 21, 1992,1 issued an amended complaint, alleging that
F. L. Thorpe & Co., Inc. (Respondent), engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act). Respondent timely filed
an answer, denying the commission of any unfair labor prac-
tices. The above-captioned matter came to trial before me in
Lead, South Dakota on February 25 and 26, 1992. At the
trial, all parties were afforded the opportunity to examine and
to cross-examine the witnesses, to offer any relevant evi-
dence into the record, to argue their legal positions orally,
and to file posthearing briefs, which were filed by counsel
for the General Counsel and by counsel for Respondent and
were carefully considered by me. Accordingly, based on the
entire record herein, including the posthearing briefs and my
observation of the testimonial demeanor of the several wit-
nesses,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a South Dakota corporation, with an office
and place of business located in Deadwood, South Dakota,
is engaged in the manufacture and wholesale sale and dis-
tribution of gold jewelry. During calendar year 1991, in the
normal course and conduct of its above-described business
operations, Respondent sold and shipped, from its Dead-
wood, South Dakota facility to customers located outside the
State of South Dakota, goods and products valued in excess
of $50,000. Respondent admits that, at all times material
herein, it has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that, at all times material herein, the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ISSUES
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by informing an employee she would have
to resign her membership in the Union before returning to
work if she engaged in a strike, by warning employees that
their anniversary dates would be set back 1 week for every
week they remained on a picketline, and by telling employ-
ees, because they engaged in a strike, they were no longer
employed by Respondent. The complaint further alleges that
Respondent violated Section 8(a)(1) and (3) of the Act by re-
fusing to reinstate employees, following unconditional re-
quests to return to work, unless they resigned their member-
ships in the Union and, as Respondent’s employees’ eco-
nomic strike was allegedly converted to an unfair labor strike
by the above-described conduct, by refusing to reinstate
striking employees to their former positions following uncon-
ditional offers to return to work. Respondent denied the com-
mission of the alleged unfair labor practices and, if commit-
ted, denies that said conduct had the effect of prolonging the
economic strike so as to convert it to an unfair labor practice
strike. Further, Respondent contends that, if the strike was
converted to an unfair labor practice strike, Respondent en-
gaged in conduct having the effect of reconverting it to an
economic strike and, thereby, relieving Respondent of the
obligation to offer immediate reinstatement to former strik-
ers.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The record establishes that Respondent, whose production
facility is located in Deadwood, South Dakota, is engaged in
the manufacture and sale of Black Hills gold jewelry and that
its 10 to 12 carat gold products include such items as rings,
pendants, stick pins, and belt buckles. Respondent’s general
manager is Terry Sanke who has overall responsibility for all
aspects of the business; his wife Sandy is the credit manager,
and Sanke’s son is Respondent’s safety director and purchas-
ing agent.3 Respondent employs 10 supervisors, including
Carol Tribble and Judy Lamphere, who direct the production
work,4 and each reports directly to Terry Sanke. The record
further establishes that the Union commenced an organizing
campaign among Respondent’s production and maintenance
employees in 1990; that such culminated in a representation
election on July 20, 1990; that the Regional Director of Re-
gion 18 certified the Union as the exclusive representative
for purposes of collective bargaining of Respondent’s pro-
duction and maintenance employees on July 27, 1990; and
that, through April 27, 1991, Respondent and the Union held
14 negotiating sessions in an effort to reach a collective-bar-
gaining agreement.
Terry Sanke testified that, at the end of April, he became
aware of the possibility that Respondent’s production and
maintenance employees would commence a work stoppage
against the company. Thereafter, he drafted a letter, dated
April 27, to all the bargaining unit employees, informing
them that they had the right to withhold their services and
engage in a strike, that Respondent would continue its manu-
facturing operations in the event of a strike, that the employ-
ees had the right to cross the picket line during a strike and
work, and that, in order to continue operating, Respondent
had the right to hire permanent replacement employees ‘‘to
do your jobs.’’ Sanke added that the letter was disseminated
to all bargaining unit personnel.
155F. L. THORPE & CO.
5 Shortly after the start of the strike, in accord with what Terry
Sanke wrote in his April 27 letter, Respondent began hiring replace-
ment workers. In this regard, the record discloses that, as of May
10, 10 such individuals had been hired by Respondent and were
working inside the plant.
6 Smith decided to continue striking ‘‘because I didn’t feel as
though I should have to drop out of the union in order to have my
job back, and they couldn’t guarantee me my position back, and . . .
my anniversary date would be pushed back because I was out on
the picket line.’’
Employee Susan Cox testified that, the next day, April 28,
she received a telephone call from her supervisor, Judy
Lamphere, who told her ‘‘that the union has decided to go
on strike and that they will be working Monday morning and
that they . . . would supply us with a ride . . . and that I
would have to sign a piece of paper resigning from the union
. . . to go back to work.’’ Cox replied that she had thought
about the situation and had decided to join the strike. The
conversation abruptly ended, and, according to Cox, she
mentioned what was said by her supervisor to, at least, six
other employees. There is no record evidence as to whether
said conversations were prior to or subsequent to the start of
the strike
The record reveals that 67 of Respondent’s 82 production
and maintenance employees commenced their anticipated
work stoppage against Respondent on April 29, with the re-
maining 15 employees continuing to work.5 That same day,
not repeating the alleged condition for returning to work at-
tributed to Supervisor Lamphere, Terry Sanke drafted another
letter to the bargaining unit employees, advising them that
they had three options during a strike: to refuse to cross the
picket line, in which case ‘‘the company may not discipline
you;’’ to cross the picket line and work, in which case ‘‘you
may be fined by the Union’’; and to resign from the Union
and return to work. Sanke added that, if employees wished
to cross the picket line and be protected from being fined,
‘‘[they] should first resign from the Union before crossing.’’
While disavowing any intent to influence the employees’ de-
cisions, Sanke enclosed resignation forms and explained the
procedure for completing and returning them to the Union.
Apparently, this letter was posted inside the plant for em-
ployees (those who did not join the strike and strike replace-
ments) to view and mailed to all striking bargaining unit per-
sonnel.
Notwithstanding what Terry Sanke wrote in his April 29
letter, two striking employees testified with regard to con-
versations with Supervisor Carol Tribble, in which she alleg-
edly placed the identical condition for employees desiring to
return to work as set forth by Judy Lamphere. Thus, striking
employee Linda Smith, who had been promoted to a trainer
inspector prior to the strike, testified that she had heard that
someone had been hired to replace her; that she was upset
and wanted to retain her position; and that, accordingly, on
May 11, she telephoned Sandy Sanke ‘‘and told her I
thought I had made a mistake by going out on strike. And
she said I had not made a mistake and I was welcome to
come back’’ but should ‘‘clarify’’ it with her Supervisor
Tribble. Thereafter, admittedly crying, Smith telephoned
Carol Tribble, and ‘‘I told her that I wanted to come back.
She told me that in order to come back that I had to sign
the paper . . . that I had dropped out of the union. And I
had to have it in the mail before I could come through the
doors Monday morning.’’ Tribble then told Smith that her
anniversary date ‘‘would be pushed back for every week I
was out on the picket line’’ and that she could not guarantee
that Smith would retain her trainer inspector position. Smith
subsequently decided to continue striking as a result of
Tribble’s stated condition for her return to work.6
Striking employee, Cindy Kruse, testified that, after the
strike had continued for approximately a week, she received
a telephone call on a Sunday from Linda Smith, who told
her that Carol Tribble said she (Smith) would lose her job
if she did not return to work. Stating that she became
‘‘scared’’ at the prospect of likewise losing her job, Kruse,
who admitted having read Terry Sanke’s April 29 letter and
understanding she had three choices as a result of the strike,
immediately telephoned Tribble. According to Kruse, ‘‘I told
Carol I wanted to come back to work, and she said before
I could come back to work I had to sign a resignation form
to resign from the union.’’ Kruse said she did not have such
a form, and Tribble told her to come to the plant the next
morning in order to obtain one. Tribble added that, after
Kruse deposited the form in the mail, ‘‘then you can come
back to work.’’ Later that same day, Tribble telephoned
Kruse about meeting to fill out the resignation form and, dur-
ing the conversation, told Kruse that ‘‘for every week that
we were out on strike . . . . my anniversary date would be
set back one week.’’ Kruse further testified that she subse-
quently decided not to abandon the strike and return to work
as her husband convinced her that the ‘‘privilege’’ of union
membership would be taken from her if she crossed the pick-
et line and returned.
The record establishes that the striking employees picketed
at Respondent’s facility, which is a two-story building with
a parking lot in the rear, on most, if not all, days of the
strike and that there was much shouting of invectives and in-
sults between the strikers, the replacement employees, and
Respondent’s supervisors, especially Sandy Sanke. Deborah
Young, a striking employee, testified with regard to an inci-
dent, involving Sanke, in late June. According to her, one
afternoon, Sanke emerged from the plant building with some
replacement employees, who were on a break period. Young,
who was picketing along with 10 other strikers that day, stat-
ed that the ‘‘usual practice’’ was shouting between Sanke
and the pickets; that, on this occasion, the pickets shouted
that she was ‘‘babying’’ the replacement workers; and that
Sanke yelled back at the pickets that ‘‘they didn’t have a
job.’’ During cross-examination, in an effort to impeach
Young’s testimony, counsel for Respondent had her identify
a pretrial affidavit in which she stated that she was never
present when Sanke told striking employees that they no
longer had jobs. Thereupon, during redirect examination,
Young identified a second pretrial affidavit in which she re-
counted that she was present, one day, when the replacement
employees were leaving the plant and Sanke had, in fact, re-
marked that the striking employees no longer had jobs. Fi-
nally, during recross-examination, Young averred that her
testimony, as to the replacement employees being on a break
that day in June, was incorrect and that she was better at re-
membering ‘‘ideas’’ and ‘‘things’’ than times or exact words.
Linda Smith, Roxanne Boyer, and Rebecca Canning testi-
fied as to a similar incident, involving Sanke, while picket-
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 During cross-examination, Canning changed Sanke’s remark from
‘‘Go find a life’’ to ‘‘Go find a job.’’
8 Canning’s ex-husband, who was standing with the picketing
strikers, ‘‘happened’’ to be carrying a live snake, and Sanke com-
mented about his presence as the replacement workers approached.
ing. According to Smith, who placed the event ‘‘somewhere
around July,’’ 10 pickets, including Boyer, Canning, and
Smith were in front of the plant on a Tuesday morning when
Sanke left the plant in her red pickup truck. No one said
anything to Respondent’s credit manager, and, as she passed
by the strikers, who were sitting on the tailgate of a station
wagon, Sanke ‘‘rolled her truck window down part way and
called us chicken shits.’’ Forty-five minutes later, Sanke re-
turned to the plant, entered the property, and parked near the
rear employee entrance, a few feet from the pickets. As she
got out of her truck, Canning yelled to her that the employ-
ees were not ‘‘chicken shits,’’ which comment precipitated
an exchange, involving insults and vulgarities, between Can-
ning, Boyer and Sanke. Smith testified that the incident
ended with Sanke yelling to the pickets ‘‘that none of us
worked there anymore’’ and entered the building.
Canning and Boyer recalled the incident as occurring on
or about June 25. Corroborating Smith, Canning testified that
pickets were sitting on the tailgate of a station wagon parked
by the rear parking lot when Sandy Sanke drove out of the
parking lot in her pickup truck. As she passed by the em-
ployees, she rolled down her window and yelled ‘‘chicken
shit, you’re all a bunch of chicken shits.’’ Canning further
testified that Sanke returned 30 minutes later, and, after the
latter parked her car and was about to enter the plant build-
ing, she (Canning) asked Sanke if she thought that Canning
was a ‘‘chicken shit.’’ Sanke said, yes, and they began argu-
ing. Finally, Sanke told Canning to ‘‘go find a life;’’ Can-
ning said she had one; and Sanke said, ‘‘Not here anymore’’
and ‘‘You do not have a job here anymore.’’7 Insisting that
she was unable to recall what may have been said prior to
Sanke’s comment, Roxanne Boyer only recalled that Sanke
drove past Canning and her and into the parking lot and,
upon getting out of her pickup, said, ‘‘I don’t know why you
bitches are here. You don’t have a job anymore anyway.’’
She was also able to recall Canning responding, but not what
she said.
There can be no doubt that Sanke’s above-described invec-
tive had a lingering and deleterious effect on employee Can-
ning. Thus, approximately 3 weeks later, on July 18, the lat-
ter, who carried a placard attached to a baseball bat, was
picketing along with other striking employees when the re-
placement employees, who, at the time, totaled approxi-
mately 33, exited the plant building and walked toward a
waiting bus, with Sandy Sanke escorting them. As the re-
placement workers began entering the bus,8 Sanke turned and
began walking back toward the plant building. Canning ad-
mitted that she walked after Respondent’s credit manager,
confronted her, and said, ‘‘You still think I’m a chicken
shit?’’ Thereupon, asserting that ‘‘it slipped,’’ the baseball
bat, which the employee was carrying, struck the ground.
Sanke just continued walking toward the plant, and Canning
followed for ‘‘maybe five, six feet.’’ At that point, Sanke
turned and said to Canning, ‘‘You don’t have a job here any-
more, go find a life.’’
Striking employee Theresa Otto testified that she heard
Sandy Sanke regularly shout similar comments at pickets
during the summer months and that ‘‘they weren’t always in
the same words, but she’d say it at least once a week.’’ On
one occasion in July, according to Otto, on a day a striker
had to be taken to a hospital in an ambulance, Sanke came
out of the plant and said ‘‘she didn’t know why we were all
there, we had no jobs anymore.’’ On other occasions, Otto
recalled, Sanke’s comments were ‘‘she didn’t know why we
hung around’’ and an admonition to never set foot in the
door again. While denying that the striking employees ever
said anything to provoke the comments from Sanke and un-
able to recall any employee responses, Otto did admit, during
cross-examination, that strikers shouted at Sanke ‘‘Leona’’
and ‘‘bitch.’’
Finally, with regard to Sandy Sanke’s comments to strik-
ing employees while they picketed outside the plant, is the
testimony of Cindy Kruse. According to her, one day in July,
Sanke walked outside from the plant building and stood ap-
proximately 25 feet from the pickets. Strikers began cursing
and yelling to her ‘‘why don’t you give us a break’’ and
we’re trying to be fair,’’ and, according to Kruse, while un-
able to recall Sanke’s exact words, ‘‘she did say that we
didn’t have a job there no more, to get away from them and
to go find a job.’’
Terry Sanke testified that, on or about the second or third
day of August, he became aware that supervisors allegedly
had been making statements to striking employees, regarding
resigning from the Union, and other, similar comments. Be-
lieving that such statements were inappropriate, Sanke there-
upon spoke to his wife, Judy Lamphere, and Carol Tribble
about the allegations. While there is no record evidence as
to the responses of his wife or of Tribble, Lamphere, accord-
ing to Sanke, denied making such statements. In any event,
on or about August 8, Respondent posted the following let-
ter, signed by Terry Sanke, on its plant bulletin boards and
mailed copies to each striking bargaining unit employee:
We have heard rumors that some strikers felt they
were told that ‘‘they no longer had jobs’’ at the Com-
pany. This is inaccurate. Statements of this nature were
not made or implied by F. L. Thorpe & Co., Inc. man-
agement. As economic strikers, you have the right to
withhold your services. Additionally, you have all other
rights that are guaranteed to economic strikers under
the National Labor Relations Act. These, of course, in-
clude reinstatement to positions not now filled and
other positions that open up if permanent replacements
abandon their jobs. Any information that you have to
the contrary is inaccurate and should be disregarded. If
you have any questions, feel free to contact me.
A significant issue herein concerns the conduct, to which
Sanke referred in the initial paragraph of his letter, allegedly
engaged in by his wife during the months of June and July
and whether or not such continued subsequent to the publica-
tion of the above-quoted letter. In this regard, Theresa Otto
maintained that Sandy Sanke continued making statements,
regarding the employment status of the strikers, after receipt
of the August 8 letter. Otto specifically recalled one incident,
‘‘within the first week after we received it,’’ during which
Sanke passed by the employee, who was picketing, and said
157F. L. THORPE & CO.
9 Otto remembered this comment, in particular, as it lead to other
strikers referring to her as ‘‘Sandy’s jobless wonder.’’ Otto testified,
during cross-examination, that Sanke uttered this comment on Au-
gust 9 inasmuch as such was the date referred to in her pretrial affi-
davit. She added that she received the August 8 letter prior to that
date just as she was sure she received Terry Sanke’s April 27 letter
prior to that date.
10 Later, when asked by me and by counsel for Respondent to re-
peat what Sanke said, Cox failed to mention the ‘‘we didn’t have
a job’’ comment.
11 It is unclear from Kruse’s testimony whether Smith spoke about
Tribble’s statement to her to the assembled strikers or just to Kruse.
Further, of course, Smith did not corroborate Kruse on this point,
and Deborah Young did not testify as to being informed of Tribble’s
conduct. There is no record evidence of dissemination, among the
striking employees, of Tribble’s threat regarding setting back em-
ployee anniversary dates 1 week for each week of the strike.
‘‘that I was a jobless wonder.’’9 Striker Susan Cox testified
with regard to a Sanke comment, which she witnessed on
August 22. According to Cox, 10 minutes before, in response
to a request by Respondent, police had arrived at the plant
to investigate a loud noise, caused by one of the pickets
slamming a lid of a garbage can against the ground. The po-
lice departed, but moments later, when Sanke came outside
with some replacement employees, who were on a break pe-
riod, a rather loud and vulgar exchange of expletives and in-
vectives ensued between the striking employees and Sanke.
At one point, according to Cox, she heard Sanke shout ‘‘ we
didn’t have a job and we had repeatedly asked if she was
our boss and the second time she didn’t say anything, and
the third time she said, ‘Yes, I’m your boss, and go
home.’’10
Cindy Kruse also testified with regard to a comment by
Sandy Sanke in August. After having her memory refreshed,
she stated that, in mid-August, after receiving Respondent’s
August 8 letter, while picketing at the plant with approxi-
mately 15 other striking employees, including Kathy
Bergstrom, Sanke came outside, and after the usual exchange
of vulgarities and invectives occurred, Sanke said ‘‘much the
same thing. We didn’t have a job there no more and go find
another one.’’ During cross-examination, Kruse changed her
testimony, stating that she heard Sanke utter such a comment
just one time, and such was prior to the August 8 letter.
However, during redirect examination, when asked if she
heard such a comment after the August letter, Kruse replied,
with a clear lack of conviction, ‘‘Yeah, I think I did.’’
Striking employee, Katherine Bergstrom, testified that, in
August, on several occasions when Sandy Sanke would enter
or leave the plant employees would call her a ‘‘grey-haired
old bitch’’ and ‘‘Leona,’’ and Respondent’s credit manager
would respond with comments, including ‘‘we were jobless
wonders, we were stupid, we were ugly, we were fucking
bitches, how did it feel to walk the street, you’re fired. . . .’’
On one occasion, which Bergstrom specifically recalled as
occurring after receipt of the August 8 letter, Sanke drove
into the parking lot, got out of her car, walked to the em-
ployee entrance, and seemed to be waiting for someone to
open the door. According to Bergstrom, she yelled to Sanke,
‘‘Why didn’t they give you a key to your own building?
How can they lock you out,’’ and Sanke ‘‘told me I’m fired,
go home.’’ I said, ‘‘stop firing me.’’ She said, ‘‘Get out of
here, you’re fired . . . . I don’t want you around here, you’re
stupid.’’
At this point, it is appropriate to consider the record evi-
dence on the central allegation of the complaint—that, since
on or about May 12, Respondent’s aforementioned conduct,
which occurred subsequent to the commencement of the
strike and which was uncontroverted, had the effect of pro-
longing the work stoppage. At the outset, with regard to the
motivation underlying the commencement of the strike, a de-
sire to obtain a satisfactory collective-bargaining agreement
from Respondent seems to have been the predominant, if not
the only, consideration. Thus, Cindy Kruse testified that she
participated in the original strike vote and that the underlying
purpose was to gain a contract with a ‘‘pay raise’’ and better
‘‘benefits.’’ Likewise, Deborah Young, Theresa Otto, Rox-
anne Boyer, and Susan Cox testified that the purpose of the
strike was to obtain a contract, one containing increased
wages and benefits, and, in the words of Katherine
Bergstrom, ‘‘We wanted to be treated better by the employ-
ers.’’
Turning to the effect, if any, of Respondent’s alleged un-
fair labor practices committed subsequent to the commence-
ment of the strike, as described above, I turn initially to con-
sideration of whether or not the occurrence of each was dis-
seminated among the striking employees. Initially, with re-
gard to whether the alleged unlawful condition for returning
to work, attributed to Supervisor Carol Tribble, was ever dis-
cussed, Linda Smith testified that she first mentioned what
Tribble told her to a union official in late July and that, until
then, she had never discussed the matter with anyone else.
Cindy Kruse testified that she discussed Tribble’s condition
for returning to work with Smith and Deborah Young, and
that, at a union meeting in the third week of May, Linda
mentioned ‘‘just what Carol Tribble told her.’’11 As to Sandy
Sanke’s conduct, the record reveals that such was a matter
for discussion among the picketing strikers subsequent to
each incident and at union meetings. Thus, employees Debo-
rah Young, Katherine Bergstrom, and Roxanne Boyer testi-
fied that Sanke’s asserted threats about strikers no longer
having jobs were discussed by employees while picketing
and at union meetings. According to employee Kruse, the
August Sanke incident, about which she testified, was dis-
cussed by the pickets immediately after it occurred and was
raised at a union meeting by one of the strikers, who ‘‘just
came right out and asked if she can get away with telling
us we didn’t have a job no more. . . .’’ Finally, Theresa
Otto testified that Sanke’s constant comments were men-
tioned at ‘‘every meeting’’ of strikers, generating questions
as to whether employees could be fired and what could be
done about her comments. Also, testified Otto, Sanke’s re-
marks were always discussed by employees while picketing,
and seemed to result in anger and frustration as the strikers
did not understand how they could constantly be fired.
While clearly, at least, the Sanke comments were widely
disseminated amongst the striking employees during their
union meetings and while picketing at Respondent’s facility,
there is no record evidence that these or Tribble’s statements
were ever discussed as reasons for continuing the strike or,
indeed, for transforming it from an economic strike in sup-
port of contractual demands. Thus, for example, Katherine
Bergstrom testified that, as the strike progressed, there was
no change in the motivation for the work stoppage from that
which existed at the outset—a desire to be ‘‘treated fair.’’
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 According to Sanke, after the reinstatement offers, Respondent
employed 36 permanent replacement employees, 19 cross-over em-
ployees, and 11 former strikers.
13 In so concluding, I have credited the testimony of each of the
witnesses, who testified on behalf of the General Counsel. In this re-
gard, I note that, as Respondent failed to call any witnesses, their
respective testimony was uncontroverted. Moreover, notwithstanding
any difficulties presented by internal contradictions, none of the wit-
nesses was inherently unreliable, and, accordingly, I shall rely on
their recollections of events herein, except where two witnesses con-
flict or contradict each other.
Deborah Young could not recall any specific discussions as
to an underlying rationale for continuing to strike, but ‘‘I
would suppose that we need a contract.’’ Likewise, Roxanne
Boyer, Susan Cox, Linda Smith, and Cindy Kruse could re-
call no other reasons for continuing the strike discussed other
than ‘‘a contract and for them to start negotiating.’’ While
apparently agreeing with the other employees that the under-
lying rationale for the on-going strike continued to be eco-
nomic, the testimony of Theresa Otto suggests that the con-
duct attributed to Sandy Sanke clearly had the effect of an-
gering the strikers. Thus, according to her, at union meetings,
she heard such comments as ‘‘if we didn’t get a fair contract,
it wouldn’t matter to us if they went under.’’
The employees’ strike against Respondent continued
through September, and, by the end of that month, Respond-
ent had hired and employed approximately 28 permanent re-
placement employees and 20 bargaining unit employees, who
either had not joined the strike at its inception or abandoned
the strike, were working in the plant. On September 30, in
response to unfair labor practice allegations that Carol
Tribble had unlawfully informed Cindy Kruse and Linda
Smith that they had to resign their union memberships in
order to work for Respondent, Respondent offered reinstate-
ment to their former positions of employment or substantially
equivalent ones to the two employees, and, on October 7, ad-
vised each that the reinstatement offer included a promise to
pay ‘‘all back pay due.’’ In addition to the reinstatement and
backpay offers to Kruse and Smith, neither of whom person-
ally responded to the offer, on October 4, Respondent mailed
to every striking employee and posted on its plant bulletin
boards, a letter, signed by Terry Sanke, advising employees
that ‘‘resignation of union membership is not and never has
been a condition for returning to work for F. L. Thorpe’’;
and that ‘‘no striking employees have been or ever will be
discharged because they choose to exercise their lawful right
to strike.’’ In another letter, dated October 8, Respondent ac-
knowledged the illegality of such conduct as informing strik-
ing employees that they were terminated or no longer em-
ployed, as telling employees they had to resign from the
Union in order to return to work, and as telling employees
that their anniversary dates will be set back 1 week for every
week they continue to strike and promised not to engage in
like future conduct. In response to Respondent’s letters, on
October 11, Delano Lords, a staff representative for the
Union, mailed to Respondent a letter, stating an ‘‘uncondi-
tional offer to return to work’’ on behalf of all striking em-
ployees, including Kruse and Smith. As of October 14, ac-
cording to Terry Sanke, Respondent employed 36 permanent
replacement employees and 19 bargaining unit employees,
who either did not choose to strike or abandoned the strike,
and, after discussions between Lords and an attorney for Re-
spondent, reinstatement letters were sent, by Respondent, to
21 former strikers, whose names appeared on a seniority list.
Eleven of the employees accepted reinstatement, and, accord-
ing to Sanke, Respondent failed to offer reinstatement be-
yond the 21st name as it had no more available positions.12
B. Analysis
The amended complaint alleges that, on April 28, Re-
spondent engaged in conduct violative of Section 8(a)(1) of
the Act by threatening an employee that, if the employees
engaged in a strike, she would be required to resign her
union membership before being permitted to return to work.
Nevertheless, the record evidence establishes that the con-
certed work stoppage by 67 of Respondent’s production and
maintenance employees, which commenced on April 29, was
an economic strike. Thus, several of the striking employees
testified that the underlying purpose of the strike was to ob-
tain a collective-bargaining agreement, which contained in-
creased wages and benefits and provided for better treatment
of the employees by Respondent. Conceding the economic
motivation for the strike at its inception, counsel for the Gen-
eral Counsel argues that, as Respondent engaged in several
serious unfair labor practices, violative of Section 8(a)(1) of
the Act, during the pendency of the strike including threaten-
ing striking employees that they would have their anniver-
sary dates set back 1 week for each week they remained on
strike, threatening striking employees that, because they en-
gaged in the strike, they were no longer employed by Re-
spondent, and refusing to reinstate striking employees, fol-
lowing unconditional requests to return to work, unless they
resigned their union membership, on or after May 12, the
strike became converted to an unfair labor practice strike.
There can be no doubt that Respondent, in fact, engaged
in the aforementioned alleged unfair labor practices.13 With
regard to the prestrike statement attributed to Supervisor
Lamphere that striking employees would not be allowed to
return to work unless they resigned from the Union, the
Board has held that such statements, which condition em-
ployment upon union membership, are coercive within the
meaning of Section 8(a)(1) of the Act. Parkview Gardens
Care Center, 280 NLRB 47 (1986). Next, the record estab-
lishes that, within the first 2 weeks of the strike, Carol
Tribble stated the aforementioned condition for being rein-
stated to striking employees Linda Smith and Cindy Kruse
after each had expressed her desire to unconditionally return
to work. Clearly, as stated above, an employer may not le-
gally condition employment on union membership, and, by
imposing such a restriction, as herein, on striking employees
who express an unconditional offer to return to work, an em-
ployer engages in conduct violative of Section 8(a)(1) and
(3) of the Act. Gaywood Mfg. Co., 299 NLRB 697, 699
(1990); Chicago Beef Co., 298 NLRB 1039 (1990). Next,
turning to Tribble’s warnings to Smith and Kruse, that the
employment anniversary date of each would be pushed back
1 week for each week she remained on strike, an employer
may not legally penalize employees for engaging in the most
basic of protected concerted activities—a strike, and state-
ments, which threaten the imposition of such a penalty, are
utterly coercive within the meaning of Section 8(a)(1) of the
159F. L. THORPE & CO.
14 Said unfair labor practices, normally occurring during the bar-
gaining process, include a withdrawal of recognition and certain acts
of bad-faith bargaining.
Act. Finally, with regard to the numerous remarks to picket-
ing strikers, attributed to Sandy Sanke, during the pendency
of the strike, by each witness who testified on behalf of the
General Counsel, that they no longer had jobs with Respond-
ent, that they no longer worked at the plant, or that they
were fired, Board law is clear that the strikers remained em-
ployees, within the meaning of the Act, during the strike,
and, therefore, her remarks clearly constituted coercive con-
duct, violative of Section 8(a)(1) of the Act. Champ Corp.,
291 NLRB 803, 804 (1988). The fact that none of the strik-
ing employees, to whom Sanke’s comments were directed,
was actually terminated does not diminish their coercive
character, and, given that the remarks were uttered by a high
management official and that Respondent obviously con-
trolled the employment relationship, the fact that Sanke’s re-
marks may have been provoked by invective from the strik-
ers does not vitiate their illegality.
Based upon the record evidence of unfair labor practices
during the ongoing strike, one may argue, as does counsel
for the General Counsel, that the employees strike against
Respondent obviously was prolonged by the latter’s conduct.
However, the Board has long held that ‘‘an employer’s un-
fair labor practices do not ipso facto convert [an economi-
cally motivated strike] into an unfair labor practice strike.’’
Gaywood Mfg. Co., supra at 700. Rather, as the Board ex-
plained in C-Line Express, 292 NLRB 638, 638 (1989), ‘‘the
General Counsel must establish that the unlawful conduct
was a factor (not necessarily the sole or predominant one)
that caused a prolongation of the work stoppage.’’ Inasmuch
as establishing the existence of the necessary causal linkage
between the unfair labor practices and the continuation of the
strike is often difficult and not susceptible to certain evi-
dentiary analysis, the Board utilizes both objective and sub-
jective considerations in resolving cases, involving this issue.
In this regard, the Board adheres to the guidelines established
by the First Circuit Court of Appeals in Soule Glass and
Glazing Co. v. NLRB, 652 F.2d 1055, 1080 (1981):
Both objective and subjective factors may be pro-
bative of conversion. Applying objective criteria, the
Board and reviewing court may properly consider the
probable impact of the type of unfair labor practice in
question on reasonable strikers in the relevant context.
Applying subjective criteria, the Board and the court
may give substantial weight to the strikers’ own charac-
terization of their motive for continuing to strike after
the unfair labor practice. Did they continue to view the
strike as economic or did their focus shift to protesting
the employer’s unlawful conduct? [Emphasis added.]
Notwithstanding that, in many cases, there will be record
evidence sufficient to afford it the opportunity to evaluate
striking employees’ subjective reactions to their employer’s
unlawful conduct in order to evaluate whether such pro-
longed a work stoppage, the Board has recognized that ‘‘the
presence or absence of evidence of such subjective motiva-
tion has not always been the sine qua non for determining
whether there has been a conversion’’ and that certain types
of unfair labor practices, which ‘‘by their nature will have
a reasonable tendency to prolong [a] strike . . . afford a suffi-
cient and independent basis for finding conversion.’’14 C-
Line Express, supra at 638.
Regarding the striking employees’ subjective motivations,
the single most compelling aspect of the entire record is that
each of the former striking employees, who testified on be-
half of the General Counsel, stated that, notwithstanding the
aforementioned unfair labor practices committed while the
strike continued, the discussions at their union meetings, with
regard to continuing the strike, centered on the need for a
collective-bargaining agreement and on the desire to be treat-
ed fairly in any agreement. Other than Theresa Otto, not one
witness mentioned the unfair labor practices as even being a
factor in the decisionmaking process, and Otto’s recollection
was that Respondent’s unlawful conduct merely had the ef-
fect of angering and frustrating the strikers rather than alter-
ing their goals for the strike. In Gaywood Mfg. Co., which,
as herein, concerned whether an employer’s statements, that
employees, who had unconditionally offered to return to
work, would have to resign their memberships in the union
in order to return to work, converted an economic strike into
an unfair labor practice strike, the Board placed significant
emphasis on the probable consternation such conduct caused
among the employees as evidenced by widespread dissemina-
tion of the conduct. Herein, other than evidence that former
striking employees Smith and Kruse discussed what Tribble
said between themselves and mentioned it to a union official
and, perhaps, to another striking employee, there is no evi-
dence that Tribble’s condition for returning to work was gen-
erally disseminated to other striking employees or that the
latter were even aware of Respondent’s unlawful conduct. In
contrast to the lack of dissemination of Tribble’s stated con-
dition for returning to work, the record establishes that the
multitudinous remarks of Sande Sanke, to the effect that the
striking employees no longer had jobs and were fired, were
widely discussed among the striking employees while they
picketed at Respondent and attended union meetings. Never-
theless, not one of the former striking employees testified
that the goals and aspirations of the strikers ever changed,
as a result of Respondent’s unfair labor practices, from their
motivation at the outset of the strike against Respondent,
with such remaining the desire for a collective-bargaining
agreement which assured them improved working conditions
and fair treatment.
Turning to the objective considerations herein, the Board
has held that ‘‘Respondent’s unlawful conditioning of rein-
statement on resignation from the Union is comparable in ef-
fect to conduct such as unlawful withdrawal of recognition
during an economic strike—an unfair labor practice that, by
its nature, has a reasonable tendency to prolong the strike.’’
Gaywood Mfg. Co., supra at 700; Chicago Beef, supra. In so
concluding in Gaywood Mfg., the Board added that such
statements, as made by Supervisor Tribble herein, ‘‘would
necessarily delay resolution of the strike by creating an issue
to be resolved individually by striking employees who had
made or were willing to make unconditional offers to return
to work—i.e., whether the employee should resign from the
Union in order to make an offer to return that would be ac-
ceptable to the Respondent.’’ Id. Based on the foregoing,
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 While, of course, former striker Susan Cox was also the recipi-
ent of an identical statement of the condition for returning from Su-
pervisor Lamphere, such occurred prior to the start of the strike, the
General Counsel concedes the strike was economically motivated at
the outset, and evidence that such was disseminated to any other
striker was not placed in any time frame. Also, there is no evidence
that Tribble’s threat, regarding setting back employees’ anniversary
dates for each week of the strike, was ever disseminated to any other
employee.
counsel for the General Counsel asserts that, notwithstanding
the subjective evidence herein, including the former striking
employees’ own belief that the objective of the strike against
Respondent, even in the face of unfair labor practices, re-
mained economic, the mere existence of evidence, establish-
ing the resignation from union membership condition for re-
turning to work, satisfies the General Counsel’s burden of
proof that Respondent’s misconduct prolonged the strike,
thereby converting it to an unfair labor practice strike. Con-
trary to counsel for the General Counsel, Respondent’s coun-
sel argues that the subjective evidence herein may not be ig-
nored and that an assessment as to the probable impact of
unfair labor practices is required ‘‘only absent’’ credible evi-
dence of the ‘‘actual’’ impact of unlawful conduct, as herein
involved.
Analysis of Gaywood Mfg. Co. has convinced me that
counsel for the General Counsel has misconstrued the
Board’s holding therein and, therefore, has wrongly ignored
the best evidence of the motivation underlying the continued
strike against Respondent—the testimony of his own wit-
nesses, which establishes the continuing economic motivation
for the strike. Thus, while counsel correctly noted the rather
sweeping language of the Board in the body of its decision,
he failed to note, in a footnote, the Board’s specific reliance,
for its holding, on crucial evidence of dissemination of Re-
spondent’s unlawful condition among the striking employees.
Therefore, it must be concluded that, notwithstanding the
Board’s above-quoted broad view the effect of conduct, as
engaged in by Respondent, the subjective fact of dissemina-
tion remains necessary to establish that the effect of the con-
duct was not isolated. Id. at fn. 16. Herein, of course, the
opposite is true. The instant record evidence will only clearly
support a finding that Tribble’s unlawful condition for re-
turning to work was discussed between striking employees
Linda Smith and Cindy Kruse, the only two recipients of
said unlawful conduct subsequent to the start of the strike,
with any evidence of broader dissemination virtually non-
existent and problematical at best. Thus, while Kruse testi-
fied that Smith raised Respondent’s unlawful condition for
returning to work at a union meeting in late May, Smith tes-
tified that she mentioned what Tribble had said only to a
union official at a meeting in July. Further, while Kruse testi-
fied that she told fellow striker, Deborah Young, about
Tribble’s statement, Young failed to corroborate her on this
point. Therefore, the crucial fact of dissemination of Re-
spondent’s unlawful condition is lacking herein, and, I be-
lieve, given that only 2 of the 67 striking employees were
aware of the unlawful condition for returning, Tribble’s con-
duct may be considered isolated and deference must be given
to the former strikers’ own testimony as to the continued
economic rationale for their strike against Respondent.15 Ac-
cordingly, counsel for the General Counsel’s contention, that
Respondent’s unlawful conditioning of reinstatement on res-
ignation from the Union is sufficient by itself to have con-
verted the employees’ economic strike into an unfair labor
practice strike, is without merit.
With regard to Sandy Sankes comments to picketing strik-
ers, during June, July, and August, while there was record
evidence of wide dissemination of her comments among the
striking employees and of the anger and frustration resulting
from her conduct, there is no record evidence that such had
any impact on the underlying rationale for the strike, which
always remained directed toward obtaining a favorable col-
lective-bargaining agreement. Arguing in a similar vein as
above, counsel for the General Counsel, citing Astro Elec-
tronics, 188 NLRB 572 (1971), argues that Sanke’s com-
ments, that the striking employees were fired and did not
work at the plant anymore, prolonged the strike by creating
new issues that required resolution and, therefore, in and of
themselves, converted the strike into an unfair labor practice
strike. The cited decision however, is distinguishable, as
therein the Board found that the strikers were actually termi-
nated when the respondent said they were fired if they
walked out the door. Id. at 572. In the instant matter, there
is no contention that any of the recipients of Sanke’s unlaw-
ful comments were actually terminated, and the fact that Re-
spondent failed to make good on their threats removes the
creation of a new issue against which to protest and, thereby,
delay resolution of the strike. C-Line Express, supra at 639.
Therefore, as above, there exists no reason not to credit the
former striking employees at their word and find that the un-
derlying motivation for the strike remained, at all times, eco-
nomic. Accordingly, I find, in agreement with Respondent’s
counsel, that the strike against Respondent, which lasted
from April 29 until October 11, remained what it was at its
inception—an economic strike designed to obtain a collec-
tive-bargaining agreement—and that it never converted into
an unfair labor practice strike. In these circumstances, I fur-
ther find that, on October 11, when the striking bargaining
unit employees unconditionally offered to return to work and
end their strike, Respondent was not obligated to treat them
as unfair labor practice strikers or to offer immediate rein-
statement to them, and I shall recommend dismissal of the
8(a)(1) and (3) allegations of the amended complaint in that
regard.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. On or about April 28, Respondent threatened an em-
ployee that if she engaged in a strike, in order to return to
work, she would be required to resign from the Union and,
thereby, engaged in conduct violative of Section 8(a)(1) of
the Act.
4. Respondent’s employees commenced an economic
strike, in order to obtain a collective-bargaining agreement,
on or about April 29.
5. On or about May 5 and 12, Respondent informed em-
ployees, who had made unconditional offers to return to
work, that, prior to being reinstated to work, each had to re-
sign her membership in the Union and, thereby, engaged in
conduct violative of Section 8(a)(1) and (3) of the Act.
161F. L. THORPE & CO.
6. On or about May 5 and 12, Respondent threatened strik-
ing employees that they would have their employment anni-
versary dates set back 1 week for each week they remained
on strike.
7. On several occasions in June, July, and August, Re-
spondent informed striking employees, who were picketing at
Respondent’s facility in support of their strike, that they were
fired, did not have jobs any longer, and did not work there
any longer, and, thereby, engaged in conduct violative of
Section 8(a)(1) of the Act.
8. For its duration, the employees’ strike against Respond-
ent continued to be an economic strike and never converted
into an unfair labor practice strike, and, when the strikers un-
conditionally offered to return to work, Respondent was
under no statutory obligation to offer immediate reinstate-
ment to them.
9. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
10. Unless specifically found herein, Respondent engaged
in no other unfair labor practices.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices within the meaning of Section 8(a)(1) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative actions which
are designed to effectuate the policies of the Act. Further,
with regard to employees Linda Smith and Cindy Kruse, I
have found that each unconditionally requested reinstatement
in early May and that Respondent, in violation of Section
8(a)(1) and (3) of the Act, conditioned such upon their res-
ignation from the Union. I have also found that, by letters
dated September 30, Respondent offered each reinstatement
to her former position of employment or a substantially
equivalent one. The letters gave each 10 days, from the date
of receipt, to accept the offer, and, on October 11, the Union,
on behalf of each striking employee, including Smith and
Kruse, made an unconditional offer to return to work. On
November 18, Respondent offered reinstatement to Linda
Smith, but, according to General Counsel’s Exhibit 25, she
was unqualified for the position and either declined reinstate-
ment or was denied such. As far as can be determined from
the record, Cindy Kruse has never been reinstated. Accord-
ingly, as it appears that, by the Union’s letter of October 11,
Smith and Kruse accepted Respondent’s offer of reinstate-
ment, as Kruse has never been reinstated to her former or an
equivalent position, and as it is unclear whether Smith was
reinstated in accord with Board law, I shall recommend that
the standard remedy in 8(a)(1) and (3) discharge cases be ap-
plied to both and leave it to the compliance stage to ascertain
the true facts as to Smith. Therefore, it shall be rec-
ommended, as to Smith and Kruse, that Respondent be re-
quired to immediately reinstate each to her former position
or, if not available, to a substantially equivalent position,
without impairment of her seniority and other rights and
privileges. Further, each shall be made whole for any loss of
earnings she may have suffered by reason of Respondent’s
unlawful condition imposed after each unconditionally of-
fered to return to work from the strike in early May. Back-
pay shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest to be
computed in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). Further, Respondent shall be
ordered to post a notice, setting forth its obligations herein.
[Recommended Order omitted from publication.]