Outdoor Venture Corp. (O.V.C.)

National Labor Relations Board - Board Decisions

Nov 9, 2001

336 N.L.R.B. 1006 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1006
Outdoor Venture Corporation (O.V.C.) and Union of
Needletrades, Industrial, and Textile Employees
(UNITE), AFL–CIO Tennessee & Kentucky Di-
vision. Cases 9–CA–34709, 9–CA–35175, and 9–
CA–35372
November 9, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On September 15, 1999, Administrative Law Judge
James L. Rose issued the attached decision.1 The Charg-
ing Party filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the Charging
Party filed a reply brief. In addition, the Respondent
filed cross-exceptions and a supporting brief, the Charg-
ing Party filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions as modified2 and to adopt the rec-
ommended Order.
In its exceptions, the Union contends, inter alia, that
the judge erred in finding that a strike by the Respon-
dent’s employees, which was admittedly economic in
nature at its inception, was not converted to an unfair
labor practice strike. For the reasons stated by the judge,
and the additional reasons set forth below, we find that
any unfair labor practices the Respondent may have
committed did not contribute to prolonging the strike.
The relevant facts can be summarized as follows. The
Respondent manufactures military tents. The Union rep-
resented the Respondent’s production and maintenance
employees for many years leading up to the 1996 strike
at issue here. In the fall of 1995, the Respondent and the
Union began negotiations for a new collective-bargaining
agreement to replace their existing contract, which ex-
pired in November 1995. The time study system used to
determine rates of pay, and the rates themselves, were
key issues. The Respondent and the Union were unable
to reach an agreement that satisfied the employees.
About August 12, 1996, the employees began a strike,
which the parties agree was economic at its outset.

1 Previously, on February 19, 1999, the Board issued a Decision and
Order denying the Respondent’s Motion for Summary Judgment in
Case 9–CA–34709. Outdoor Venture Corp., 327 NLRB 706 (1999).
2 We correct three inadvertent errors by the judge, which do not af-
fect our decision. In sec. III,A of his decision, the judge found that the
parties began negotiations for a new collective-bargaining agreement in
the summer of 1996. In fact, they began negotiations in the fall of
1995. Also in sec. III,A, the judge found that Ella Massengale, the
Union’s chief steward, testified that the strike would have ended if the
Respondent had agreed to pay $7.50 per hour. In sec. III,B,2, the judge
attributed the same testimony to “General Counsel witnesses.” No
witness gave this precise testimony. Massengale did testify, however,
that the employees wanted $7.50 per hour and that the strike would
have ended “with the management [problems] being settled and the
rates being settled and then a decent wage.” We are satisfied that these
minor errors do not undermine the judge’s conclusions that the Re-
spondent’s direct dealing did not contribute to prolonging the strike.
During the strike, the parties continued negotiating.
About September 26, 1996,3 the Respondent’s president
and chief executive officer, J.C. Egnew, met with strikers
on the picket line and discussed a wide range of matters
that were also subjects of negotiations. About October 4,
the Respondent tendered a new contract proposal, which
the employees rejected.
About November 9, a representative for the Interna-
tional Union met with about 35 of the 88 strikers. He
told them that the Respondent had been committing un-
fair labor practices, including Egnew’s September 26
meeting with strikers on the picket line, and that employ-
ees should consider changing the strike to an unfair labor
practice strike. The 35 strikers present voted to continue
the strike as an unfair labor practice strike. The testi-
mony reflects, however, that employees mistakenly be-
lieved that unsatisfactory wages and other economic is-
sues were unfair labor practices. For example, one em-
ployee testified that “we all agreed that [the strike] was
an unfair labor practice from the beginning or should
have been,” based on “the amount of money being made”
and other economic issues.
About November 16, employees voted to reject an-
other contract proposal, which the Respondent had made
sometime in mid-November. The Respondent then be-
gan hiring replacements.
The strike continued until about February 26, 1997,
when the Union made an unconditional offer to return to
work on behalf of the striking employees. The Respon-
dent refused to offer immediate reinstatement on the ba-
sis that the strike was economic and the strikers had been
permanently replaced. About March 6, 1997, the Re-
spondent withdrew recognition from the Union, relying
on a decertification petition signed by a majority of its
work force, including replacements.
The complaint alleges that Egnew engaged in unlawful
direct dealing at the September 26 meeting, and that this
direct dealing converted the strike into an unfair labor
practice strike. Therefore, the complaint alleges that the
Respondent violated Section 8(a)(3) and (1) by failing to
reinstate the strikers on their unconditional offer to return
3 All dates are in 1996 unless otherwise specified.
336 NLRB No. 97
OUTDOOR VENTURE CORP. 1007
to work.4 In addition, the complaint alleges that the Re-
spondent violated Section 8(a)(5) and (1) by withdrawing
recognition from the Union in March 1997. Finally, the
complaint alleges that the Respondent violated Section
8(a)(5) and (1) by ceasing to withhold union dues in Au-
gust 1997 pursuant to a checkoff arrangement authorized
by the collective-bargaining agreement, which had ex-
pired in November 1995.
As the Board has recently explained:

It is well established that a work stoppage is consid-
ered an unfair labor practice strike if it is motivated,
at least in part, by the employer’s unfair labor prac-
tices, even if economic reasons for the strike were
more important than the unfair labor practice activ-
ity. It is not sufficient, however, merely to show that
the unfair labor practices preceded the strike.
Rather, there must be a causal connection between
the two events.

Golden Stevedoring Co., 335 NLRB 410, 411 (2001)
(citations omitted).
The judge found that the Respondent engaged in
unlawful direct dealing at the September 26 meeting on
the picket line.5 He also found, however, that the Gen-
eral Counsel failed to prove that the direct dealing con-
tributed to prolonging the strike. Accordingly, he con-
cluded that the strike remained economic at all times and,
therefore, that the Respondent did not violate Section
8(a)(3) and (1) by failing to reinstate the strikers on de-
mand. For the reasons stated by the judge, we agree.
Our dissenting colleague argues that a remand is nec-
essary because the judge failed to resolve conflicting
testimony on what Egnew said to strikers at the Septem-
ber 26 meeting. We disagree. Even crediting the testi-
mony most favorable to the Union—that Egnew told the
strikers to “trust him” and stated in general terms that he
would “fix” their problems—and assuming that that tes-
timony establishes unlawful direct dealing, the General
Counsel failed to prove that Egnew’s picket-line conduct
contributed to prolonging the strike. The evidence does
not establish that the direct dealing itself caused any con-
sternation among the strikers or strengthened their re-
solve to continue striking. The General Counsel’s own
witnesses testified that strikers’ feelings toward Egnew

4 The complaint seeks no remedy for the direct dealing itself, which
was the subject of a settlement approved by the Regional Director on
January 31, 1997. See the discussion of the settlement agreement in
our prior decision cited in fn.1, supra.
5 About September 10, Egnew’s predecessor, Larry Lockhart, had a
similar meeting with the strikers. The judge found that Lockhart en-
gaged in unlawful direct dealing at that meeting. The Union argues
only that Egnew’s direct dealing, not Lockhart’s, prolonged the strike.
were positive after the September 26 meeting. The strik-
ers did not become upset until they received the Respon-
dent’s October 4 contract proposal, which they viewed as
inadequate and even regressive.6 Although witnesses
testified that after the October 4 proposal the strikers
were angry at what they viewed as Egnew’s “lies” and
“broken promises,” there is no evidence that the strikers
were upset that Egnew had made the alleged promises
directly to them rather than through the Union, or that
they felt Egnew had undermined or denigrated the Union
by doing so. In addition, some of the same witnesses
who testified that they felt Egnew had lied and broken
his promises also testified that they continued striking
because the Respondent failed to propose an acceptable
contract, and that the strike would have been settled if
wages and other economic issues had been resolved.7
Furthermore, the vote to convert the strike apparently
was based on the mistaken belief that unsatisfactory
wages and economic issues were unfair labor practices.
One employee testified that “we all agreed that [the
strike] was an unfair labor practice from the beginning or
should have been,” based on “the amount of money be-
ing made” and other economic issues.
In light of this evidence, the General Counsel has
failed to carry his burden to prove that unlawful direct
dealing converted the strike into an unfair labor practice
strike. Accordingly, we agree with the judge that the
strike remained economic at all times, and that the Re-
spondent did not violate Section 8(a)(3) and (1) by fail-
ing to reinstate the strikers on demand. See, e.g., Forest
Grove Lumber Co., 275 NLRB 1007 fn. 1 (1985) (be-
cause there was no causal connection between the re-
spondent’s direct dealing and continuation of the strike,
the strike remained economic at all times). We therefore
find a remand unnecessary.8
6 The Union’s original charge, filed November 27, alleged regressive
bargaining. On January 13, 1997, however, the Regional Director
dismissed that portion of the charge. Consequently, there is no conten-
tion in this case that unlawful regressive bargaining prolonged the
strike.
7 For example, striker Janet Duncan testified that she concluded
Egnew had lied to employees because “he offered us another contract”
that was “less than what we had been offered when Larry [Lockhart]
was president.” Picket Captain Lloyd Lynch testified that employees’
attitudes changed after the October 4 proposal because “the people felt
like the contract was no different than the one they had just [gone] on
strike over.” He further testified that at the time of the November 9
meeting, employees were “upset” over “the contract proposal.” Simi-
larly, in discussing employees’ reactions to the Respondent’s mid-
November proposal, Chief Steward Ella Massengale testified that em-
ployees “couldn’t understand why [Egnew] had [gone] backward in his
bargaining and that they [were] very disappointed in the contract or the
proposals that [were] presented to them.”
8 In addition to remanding the case to resolve the conflicting testi-
mony about Egnew’s statements at the meeting, our dissenting col-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1008
Because the strike was economic, the Respondent was
entitled to hire permanent replacements. Therefore, the
Respondent lawfully relied on the signatures of those
replacements in concluding that the decertification peti-
tion had been signed by a majority of its work force.
Accordingly, we agree with the judge that the Respon-
dent did not violate Section 8(a)(5) and (1) by withdraw-
ing recognition from the Union.
Finally, the judge found that the Respondent lawfully
ceased withholding union dues in August 1997. We
agree. The Respondent’s obligation to withhold dues
ceased in November 1995, when the collective-
bargaining agreement creating that obligation expired.
See Hacienda Resort Hotel & Casino, 331 NLRB 665,
667 (2000).9 We need not rely, as the judge did, on the
fact that the Union ceased to be the bargaining represen-
tative before the Respondent stopped withholding dues.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

MEMBER WALSH, dissenting in part.
Contrary to my colleagues, I would remand this case to
the judge to explicitly resolve a material conflict in the
testimony and determine precisely what was said at a
critical September 26, 19961 meeting between the Re-
spondent and strikers on the picket line. Because the
Respondent’s conduct at this meeting is alleged to consti-
tute direct dealing that prolonged the strike, I would not
pass at this point on the lawfulness of the Respondent’s
refusal to reinstate the strikers on demand or the Respon-
dent’s withdrawal of recognition from the Union.2
The employees began an economic strike about August
12. During the strike, the parties continued negotiating
for a new collective-bargaining agreement. About Sep-
tember 26, the Respondent’s president and chief execu-

league would ask the judge to address the Respondent’s argument that
union acquiescence in the meeting precludes a finding of direct dealing.
We find that unnecessary, because the acquiescence issue does not
affect our conclusion that the strike remained economic. If the employ-
ees’ bargaining representative did acquiesce, there would be no unlaw-
ful direct dealing and therefore no unfair labor practice on which to
base a finding that the strike converted to an unfair labor practice strike.
If the employees’ bargaining representative did not acquiesce and the
Respondent did engage in unlawful direct dealing (as we have assumed
in our analysis above), the General Counsel still failed to prove that
direct dealing contributed to prolonging the strike.
9 Member Liebman dissented in Hacienda, supra, but agrees that it
establishes that the Respondent acted lawfully in ceasing to withhold
union dues.
1 All dates are in 1996 unless otherwise specified.
2 Regardless of the character of the strike, I agree with my col-
leagues that the Respondent lawfully ceased withholding union dues in
August 1997. See Hacienda Resort Hotel & Casino, supra at 667.
Therefore, I would not remand that issue.
tive officer, J. C. Egnew, met with strikers on the picket
line and discussed issues that were also subjects of nego-
tiations. After the meeting, employees felt confident that
the strike would be resolved. As explained below, how-
ever, witnesses gave conflicting testimony as to what
Egnew said at the meeting.
About October 4, the Respondent tendered a new con-
tract proposal. The employees rejected it, feeling that it
was regressive and that it failed to live up to the expecta-
tions they had formed as a result of the September 26
meeting with Egnew.
About November 9, a union representative held a
meeting attended by 35 of the 88 strikers. He told the
strikers that the Respondent had been committing unfair
labor practices and specifically mentioned the September
26 meeting. The 35 strikers present voted unanimously
to continue the strike as an unfair labor practice strike.
The Respondent made another contract proposal in
mid-November. During a November 16 meeting to vote
on the proposal, employees expressed anger and disap-
pointment that Egnew had lied to them at the September
26 meeting, that he had broken his promises to them, and
that he had told employees to “trust him” and then failed
to help them. The employees rejected the Respondent’s
contract proposal, and the strike continued.
About February 26, 1997, the Union made an uncondi-
tional offer to return to work on behalf of the striking
employees. The Respondent refused on the basis that it
had permanently replaced the strikers. About March 6,
1997, the Respondent withdrew recognition from the
Union, relying on a decertification petition that included
signatures from the replacements.
At the hearing, witnesses gave conflicting testimony
on what occurred at the September 26 meeting. The
General Counsel’s witnesses testified that Egnew told
strikers to “trust him” and promised the strikers that he
understood their problems and would “look into” or “fix”
them. The Respondent’s witnesses, on the other hand,
testified that Egnew made no promises to the strikers, did
not tell them to “trust him,” and did not say anything that
had not already been discussed at the bargaining table.
The judge made no specific findings on what Egnew
said at the meeting, nor did he make any express credi-
bility determinations that would resolve the conflicting
testimony. He simply found that Egnew talked to the
strikers about certain issues that were subjects of
bargaining. He then concluded that Egnew engaged in
unlawful direct dealing. The judge found, however, that
the direct dealing did not contribute to prolonging the
strike, and therefore that the strike remained economic at
all times. Accordingly, he dismissed the allegations that
the Respondent violated Section 8(a)(3) and (1) by fail-
OUTDOOR VENTURE CORP. 1009
ing to reinstate the strikers on demand and Section
8(a)(5) and (1) by withdrawing recognition based on a
decertification petition signed by the replacements.
The Union excepted to the judge’s failure to make an
explicit finding that Egnew promised the strikers to try to
resolve their complaints or “fix” their problems. The
Union also excepted to the judge’s failure to find that
Egnew’s direct dealing prolonged the strike. The Re-
spondent excepted to the judge’s finding that Engew en-
gaged in unlawful direct dealing. The Respondent ar-
gues that Egnew did not make any promises or other
statements that would constitute direct dealing. The Re-
spondent further argues that the acquiescence of the em-
ployees’ bargaining representative in the meeting pre-
cludes a finding of direct dealing. The Respondent con-
tends that both the Local and International union repre-
sented the employees, that Local union representatives
arranged and attended the meeting, and that an Interna-
tional union representative knew about the meeting in
advance and made no effort to cancel it. The Union de-
nies that it acquiesced in direct dealing and argues that
the International, not the Local, was the exclusive bar-
gaining representative.3
My colleagues conclude that even assuming Egnew
engaged in unlawful direct dealing by promising the
strikers that he would resolve their complaints, the evi-
dence does not support a finding that his direct dealing
contributed to prolonging the strike. I disagree.
I find merit in the Union’s argument that if Egnew
unlawfully made promises to the employees on Septem-
ber 26 those promises may have contributed to prolong-
ing the strike.4 Thus, Egnew’s promises may have raised
strikers’ expectations that the Respondent would propose
a contract acceptable to them and that the strike would
soon end. When the Respondent’s October 4 proposal
was received, the expectations resulting from the direct
dealing were crushed, leading to consternation among the
strikers. I do not find it dispositive that the employees
became angry only after receiving the October 4 pro-
posal, or that their complaints focused on the terms of the
proposal rather than the fact that Egnew had dealt with
them directly. The employees were angry about the pro-
posal because it indicated to them that Egnew had lied
and broken the promises he made—unlawfully—at the

3 The Respondent raised the acquiescence issue below. Although the
judge’s conclusion that direct dealing occurred suggests that he implic-
itly rejected the Respondent’s argument, the judge did not specifically
address it in his decision.
4 The standard for determining whether a strike has been converted
is well established: the unlawful conduct need not be the “sole or pre-
dominant” factor that caused a prolongation of the work stoppage; it is
sufficient for the record to show that the unlawful conduct was “a fac-
tor.” C-Line Express, 292 NLRB 638 (1989).
September 26 meeting. But for Egnew’s direct dealing at
that meeting, there would have been no lies, no promises
to break, and no crushed expectations. One of the dan-
gers inherent in direct dealing is that the employer’s pro-
posals or promises change employees’ expectations
about what the parties can realistically achieve in bar-
gaining, making it more difficult to reach agreement.
That is what the Union argues occurred here: Egnew
made promises to the strikers that raised their expecta-
tions. The Respondent’s subsequent contract proposals
failed to live up to these promises, angering employees
and contributing to their decision to reject the proposals
and continue striking. Therefore, if Egnew did unlaw-
fully promise the strikers to resolve their complaints, I
cannot agree with my colleagues that his direct dealing
failed to cause consternation among the strikers or con-
tribute to prolonging the strike.
However, the testimony is in conflict and the judge’s
decision is unclear on whether Egnew actually promised
the strikers anything. In addition, the judge made no
factual findings that resolve the issue of whether the em-
ployees’ bargaining representative acquiesced in the di-
rect dealing. Therefore, in the absence of additional find-
ings on Egnew’s statements at the September 26 meeting
and the role of the employees’ bargaining representative
in that meeting, I can neither adopt nor reverse the
judge’s conclusions that the Respondent engaged in
unlawful direct dealing, but that the direct dealing did not
contribute to prolonging the strike.
Accordingly, I would remand this case for further find-
ings. I would instruct the judge to make specific findings
on what occurred at the September 26 meeting, including
credibility determinations to resolve the conflicting tes-
timony regarding Egnew’s statements to the strikers.
Furthermore, I would instruct the judge to address
whether the employees’ bargaining representative acqui-
esced in the direct dealing by its involvement in the Sep-
tember 26 meeting. I would ask the judge in addressing
this issue to determine which entity (International, Local,
or both) was the employees’ bargaining representative
and what participation, if any, that representative had in
the September 26 meeting.5 Finally, assuming that the
judge again finds that the Respondent engaged in unlaw-
ful direct dealing, I would instruct the judge to re-
analyze, in light of his additional findings, whether that
direct dealing converted the strike to an unfair labor prac-
tice strike.

5 I would not, however, find that the mere failure of the International
representative to cancel the meeting constitutes acquiescence in unlaw-
ful direct dealing, even if the International is found to be the employ-
ees’ bargaining representative.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1010
James E. Horner, Esq., for the General Counsel.
Edwin S. Hopson, Esq., of Louisville, Kentucky, for the Re-
spondent.
Ira J. Katz, Esq., of New York, New York, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me at Whitley City, Kentucky, on June 15 and
16, 1999, following a Decision and Order of the Board dated
February 19, 1999, denying the Respondent’s Motion for
Summary Judgment dated August 5, 1997. At issue here is
whether a strike commenced by the Respondent’s employees
on August 12, 1996, was converted to an unfair labor practice
strike thus entitling those employees to immediate reinstate-
ment when they made the demand on February 26, 1997. The
Respondent argued that the alleged unfair labor practices
(threats of plant closure and direct dealing with employees by
then CEOs of the Respondent in August and September 1996)
were settled and by agreement approved by the Regional Direc-
tor on January 31, 1997. The Board rejected this argument
because of certain reservation language in the settlement
agreement, and likewise rejected the Respondent’s other bases
for summary judgment.
It is alleged here that the Respondent’s refusal to reinstate on
demand all the strikers on February 26, 1997 (with the excep-
tion of certain named individuals who it is agreed engaged in
picket line misconduct), violated Section 8(a)(3) of the National
Labor Relations Act. And its withdrawal of recognition on
March 6, 1997, violated Section 8(a)(5).
The Respondent generally denied that it committed any vio-
lations of the Act, contends that at all times the strike was eco-
nomic and that the strikers had been permanently replaced prior
to their demand for reinstatement and affirmatively reserved the
arguments made in its Motion for Summary Judgment.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I hereby make the
following findings of fact, conclusions of law, and recom-
mended Order.
I. JURISDICTION
The Respondent is a Kentucky corporation engaged in the
manufacture of tents, primarily for military use at a facility in
Stearns, Kentucky. In the operation of this enterprise, the Re-
spondent annually ships directly to points outside the State of
Kentucky goods valued in excess of $50,000. The Respondent
admits, and I find that it is an employer engaged in interstate
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Union of Needletrades, Industrial and Textile Employees,
(UNITE), AFL–CIO, Tennessee and Kentucky Division (the
Union) is admitted to be, and I find is, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondent began operations in 1972 making family
camping tents and ultimately became the second largest sup-
plier of family camping tents in the United States. In the early
1980s, the business shifted to making tents for military use.
For many years, the Union (or its predecessor) has been the
bargaining representative of the unit of the Respondent’s pro-
duction and maintenance employees. In the summer of 1996,1
the Union and Respondent began negotiations for a new collec-
tive-bargaining contract. Unable to reach what the employees
considered a satisfactory agreement, on August 13, they went
on strike. The strike lasted until February 26, 1997, at which
time the Union made an unconditional offer on behalf of the
striking employees to return to work. At that time there were
no job vacancies since the strikers had been permanently re-
placed. Subsequently, however, most were offered jobs and
most declined. Following receipt of a petition from a majority
of the then work force, on March 6, 1997, the Respondent with-
drew recognition from the Union.
On the first day of the strike, and again on September 10, the
Respondent’s then president, Larry Lockhart, went to the picket
line and talked to the strikers. Ella Massengale, the Union’s
chief steward, testified that “the morning after we had a truck
incident” (making the date September 10) Lockhart came to the
picket line and talked with employees about 2 or 3 hours. He
told them he needed the strikers back in the plant, “that he
wouldn’t replace us,” “because if he did the new replacements
couldn’t handle the job and he would have to lock the doors.”
Lockhart also discussed with them medical insurance and he
listened to complaints about specific managers and supervisors.
Lockhart told them he knew there was a problem with the new
rating system (by which employees’ pay was calculated) and
that he would look into it.
Lockhart resigned on September 25 or 26, and James
Egnew2 again became the Respondent’s president. In late Sep-
tember, Egnew came to the picket line and talked with strikers
about 2 hours. He and the pickets discussed various items in
issue, including medical insurance, employee problems with
management, and the rating system. After this, the employees
were generally confident that their issues would be resolved
and that an acceptable contract would be reached.
However, after the bargaining session of October 4, the em-
ployees felt that the Company’s position was no different than
it had been. Thus, the employees met on November 9, at which
time Union Representative Mark Pitt said that the Respondent
had been committing unfair labor practices and that the em-
ployees should consider changing the nature of the strike from
economic to unfair labor practice. The 35 or so employees
present voted to do so. In the words of Union Secre-
tary/Treasurer Lloyd Lynch, the strike “was an unfair labor
practice strike from the beginning or should have been.” He
testified, “I based that on the amount of money being made per
hour. The rate system. The Management the conduct toward

1 All dates are in 1996, unless otherwise indicated.
2 The transcript is corrected to reflect the correct spelling of his sur-
name.
OUTDOOR VENTURE CORP. 1011
the people.” He noted that no one was making more than $4.75
per hour and “for an eighteen to twenty year veteran that’s un-
fair all the way to me.”
Massengale testified Pitt had told them that Egnew coming
out on the picket line and the way employees were being
treated were unfair labor practices. However, she also testified
that if the Respondent agreed to pay $7.50 per hour, the strike
would have been over. She testified, “This was an unfair labor
practice strike and not an economic and we was out for better
Management and be treated better.” The picket signs were
changed to reflect that the strike was now being considered a
protest of the Respondent’s unfair labor practices.
On November 27, the Union filed an unfair labor practice
charge alleging threats and direct dealing with employees by
Lockhart on September 10 and Egnew in late September. The
Regional Director for the Ninth Region approved settlement of
this matter on January 31, 1997, and the Respondent posted an
appropriate notice. On August 7, 1997, the Respondent moved
for summary judgment of the instant complaint on grounds that
the underlying unfair labor practices (if any) had been remedied
and therefore could not form the basis for converting the strike
from economic to unfair labor practice. As noted above, the
Board denied this motion by Order dated February 19, 1999.
The Board concluded that the activity of Lockhart and
Egnew, which was the subject of the earlier case, could be con-
sidered when determining whether the strike was converted
because in the settlement agreement was a specific reservation.
However, the General Counsel here does not seek any remedy
based on those acts, but only that findings be made that Lock-
hart and Egnew threatened employees and dealt directly with
them, bypassing the Union.
B. Analysis and Concluding Findings
1. The threats and bypassing the Union
There is no testimony that Egnew, when talking with picket-
ers in late September, said anything, which would amount to a
threat in violation of the Act. Lockhart did state that if the
picketers did not return to work, he would close the plant, but
this was in the context of telling them that he could not, and
would not, hire replacements. He told employees he would not
replace them, but that absent their services, he would have to
close. Since this is precisely the aim of a strike—to put eco-
nomic pressure on an employer—it can scarcely be found a
violation for an employer to say so. I doubt that in such cir-
cumstances the Board would find a threat in violation of Sec-
tion 8(a)(1).
However, there is no doubt that both Lockhart and Egnew
dealt directly with employees. Each, in his capacity as presi-
dent and CEO, spent 2 to 3 hours on the picket line discussing
with employees a wide range of matters, which were also sub-
jects of discussion in contract negotiations. The Board has held
that employers can communicate with employees without vio-
lating the Act, Proctor & Gamble Mfg. Co., 160 NLRB 334
(1966); however, the type of activity engaged in here the Board
has found to undermine the position of employees’ collective-
bargaining representative and to be unlawful direct dealing.
Harris-Teeter Super Markets, 310 NLRB 216 (1993). I there-
fore conclude that in fact the Respondent violated Section
8(a)(5) in bypassing the Union and dealing directly with the em-
ployees. However, no remedy is sought for this violation since it
was settled by agreement of the parties.
2. Converting the strike from economic to unfair
labor practice.
The principal question here is whether this activity was suffi-
cient to cause the employees to prolong the strike. Most recently,
in F. L. Thorpe & Co., 315 NLRB 147 (1994), the Board reiter-
ated its standard for determining whether a strike has been con-
verted, quoting from Gaywood Mfg. Co., 299 NLRB 697, 700
(1990), that the General Counsel must prove only that “the
unlawful conduct was a factor (not necessarily the sole or pre-
dominant one) that caused a prolongation of the work stoppage.”
Thus if the evidence suggests that even absent unfair labor
practices the strike would have continued conversion can never-
theless be found if there is sufficient objective and/or subjective
evidence that the unfair labor practices were in the mix of rea-
sons. Thus, for instance, in C-Line Express, 292 NLRB 638
(1989), the Board held that certain unfair labor practices would,
by their nature, cause employees to continue striking.

In Thorpe a high management official repeatedly told the
strikers they were fired because they were engaged in protected
activity and they should go home. These statements were
widely disseminated. The employer also conditioned return to
work on the strikers resigning from the union (a condition
which was later retracted). Thus notwithstanding the continued
economic purpose, the Board found the strike had been con-
verted.
However, the Board has questioned self-serving, after the
fact characterizations by strikers of their motive and does not
give such evidence much weight. But contemporaneous state-
ments can show motive, such as, the unfair labor practices
caused “consternation” among strikers.
Citing Beaumont Glass Co., 310 NLRB 710 (1993), the Un-
ion argues that the direct dealing here in fact caused “conster-
nation” because after talking with Egnew, the employees had
unrealistic expectations about what the Respondent might be
willing to offer. When the Respondent’s offer fell short of
these expectations, the strike was prolonged. While I find there
was direct dealing here, unlike Beaumont, the Respondent did
not make proposals to employees, which had not been made to
the Union.
There is no question that here the strike was at its inception,
and continued to be, primarily to force economic goals. Gen-
eral Counsel witnesses testified, for instance, that had the Re-
spondent agreed to $7.50 per hour, the strike would have been
over. The issue, then, is whether the proven unfair labor prac-
tices—the direct dealing—can be said to have contributed in
some way to prolonging the strike. I conclude not.
First, I find that the threat attributed to Lockhart was not a
violation of the Act. There is no testimony that Egnew made
any kind of a threat. Though both Lockhart and Egnew did in
fact deal directly with employees, I do not find, in this fact
situation, that such would, or did, cause employees to continue
striking.
The employees wanted to meet with Lockhart and Egnew,
and following these meetings were hopeful that their concerns
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1012
would be addressed. Indeed, the entire employee complement
of the negotiating committee was present at these meetings. It
was only after the meeting with Egnew, and the Respondent’s
failure to offer an acceptable contract, that employees voted to
continue the strike as an “unfair labor practice strike.”
The subjective evidence from employees is that they voted to
convert the strike, but were of the opinion that low wages and
other concerns in negotiations were unfair labor practices.
There is nothing in the testimony of any striker that direct deal-
ing was of any particular significance to them. Further, while
the vote to convert the strike was unanimous of those present,
only about 35 of the 88 strikers were present.
Accordingly, I conclude that a preponderance of the credible
evidence does not establish that the strike was in any way pro-
longed by the Respondent’s unfair labor practices. The strikers
at all times were economic strikers. Thus, they were not enti-
tled to reinstatement on demand. The evidence shows that in
fact the Respondent offered reinstatement appropriately.
3. Withdrawal of recognition
It is alleged and admitted that the Respondent withdrew rec-
ognition from the Union, on March 6, 1997. According to the
Respondent, this was based on its good-faith belief that the
Union no longer represented a majority of employees in the
bargaining unit, since it had been given a petition signed by 110
employees between February 7 and 24, 1997. On March 10,
1997, the Respondent filed a RM petition with the Board.
The General Counsel bases this allegation on the theory that
the strike had been converted and therefore most of the em-
ployees signing the petition should have been discharged in
favor of the strikers who had asked for reinstatement on Febru-
ary 26. There is no issue here that the striker replacements
were not permanent. C.f. Target Rock Corp., 324 NLRB 373
(1997).
Inasmuch as I have concluded that the strike continued to be
economic, the replacements and those who ceased striking con-
stituted the bargaining unit, a majority of which signed the
petition. Of course, economic strikers would have had the right
to vote in any representation election.
In any event, I conclude that the Respondent did not violate
the Act by withdrawing recognition from the Union.
Since the Union ceased to be the bargaining representative,
to cease withholding dues pursuant to checkoff was not a viola-
tion of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.3
ORDER
The complaint is dismissed in its entirety.

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