John Kolkka, d/b/a Kolkka Tables and Finnish-American Saunas. - Decision Summary

John Kolkka, d/b/a Kolkka Tables and Finnish-American Saunas, a Sole Proprietorship (20-CA-27284, et al.; 335 NLRB No. 69) Redwood City, CA Aug. 27, 2001. Members Liebman, Truesdale, and Walsh, while affirming the administrative law judge's decision in substantial part, found merit in certain of the General Counsel's exceptions and concluded, contrary to the judge, that the Respondent threatened to discharge and unlawfully discharged 15 employees on May 13, 1996, because of their protected strike activity; and that the Respondent unlawfully suspended Efrain Ramos Tea on August 23, 1996, due to his exercise of Section 7 rights. They overruled Kerrigan Iron Works, Inc., 108 NLRB 933 (1954), affd. sub nom. Shopmen's Local 733 v. NLRB, 219 F.2d 874 (6th Cir. 1955), cert denied 350 U.S. 835 (1955), and cases following it to the extent they are incompatible with current case law.

The judge had relied on Kerrigan to find that the 15 workers were illegally threatened but not discharged. In Kerrigan, the Board agreed that the employer unlawfully threatened to terminate strikers who did not return to work by a certain date, but that the unlawful threat did not amount to an unlawful discharge of the strikers because after the stated date the employer reinstated strikers who wished to return to work. The majority wrote: "In essence, the Kerrigan line of precedent holds that an employer may lawfully threaten to discharge to bluff strikers back to work, or to cow them from striking in the first instance, as long as the employer later reinstates strikers if the ruse fails. In our view, these cases improperly allow an employer to use an admittedly unlawful threat to intimidate employees in the exercise of their right to strike. Such a result is clearly inimical to the exercise of Section 7 rights and therefore inconsistent with the purposes and policies of the Act."

Chairman Hurtgen, dissenting in part, agreed that the employees engaged in a strike on May 13, but he found the strikers did not have a right to remain on Respondent's property, that the Respondent did not unlawfully threaten to discharge them for striking, and that the threat was not tantamount to an unlawful discharge. "The threat was to discharge them if they continued their conduct of 'sitting in' on premises in order to force a group meeting with Respondent," Chairman Hurtgen said. "And, although they had a Section 7 right to seek a group meeting, Respondent had no obligation to comply with the request." He found his colleagues' inference--that Respondent took away the lawful alternative of protesting outside the plant by giving the employees the alternative of "going home"--was "quite a stretch." The Chairman added:

"Further, even assuming arguendo that Respondent threatened to discharge the employees for striking, and further assuming arguendo that the threat was unlawful under Section 8(a)(1), an unlawful threat is not the same as an unlawful discharge. Nearly 50 years of Board and court law support my view. My colleagues would overrule this body of law. I would not do so."

The Respondent, a sole proprietorship owned by John Kolkka and his wife, Stephanie Kolkka, is engaged in the design and production of metal furniture and saunas. This case involves a dispute between the Respondent and its production workers that arose in mid-May 1996 regarding "piece rates" paid to employees. As a result of the dispute, fifteen employees did not appear for work on May 13 and 14. The judge found that because of this absence, which was protected strike activity, the Respondent on May 15 unlawfully discharged 2 employees, unlawfully suspended a third, Efrain Ramos Tena, and issued warnings to the remaining 12. The judge also found that the Respondent committed numerous 8(a)(1) violations designed to induce and coerce the employees to vote against the Union and by, ordering employee Tena, after the Union won the election, to remove union stickers from his own toolbox. The Board adopted these findings in the absence of exceptions.

Agreeing with the General Counsel, the majority found that the 15 employees were not only unlawfully threatened by Stephanie Kolkka's statements on May 13, but were also unlawfully discharged. In so concluding, the majority held: "[T]he Kerrigan analysis suffers from a basic misconception: the belief that the meaning of the employer's unlawful threat of discharge of strikers can be further assessed when the employees attempt to return to work following the strike. However, the Board has consistently ruled over the last 20 years that discharged strikers have no obligation to request reinstatement." See Naperville Ready Mix, 329 NLRB 174, 185 (1999), enfd. 242 F.3d 744 (7th Cir. 2001), citing Abilities & Goodwill, 241 NLRB 27 (1979), enf. denied on other grounds 612 F.2d 6 (1st Cir. 1979).

The majority said: "Thus, if striking employees believe, as a result of the employer's threat of discharge, that they have been discharged, they would quite likely not request reinstatement. And if they in fact do not request reinstatement, there is no way to meaningfully evaluate, under the 'tactical discharge' analysis, the employer's subsequent failure to reinstate them." The majority decided that the "reasonable employee" analysis applied by the Board in North American Dismantling, 331 NLRB No. 163 (2000), which focuses on what employees would reasonably believe the employer meant by its words and conduct, "is more consistent with the Act's purpose of protecting Section 7 rights, and is therefore the proper approach." Accordingly, to the extent the Kerrigan "tactical discharge" line of cases still survives, the majority overruled them.

Even were it to apply the Kerrigan precedent, the majority said it would reach the same result in this case, noting that when the 15 strikers attempted to return to work on May 15, the Respondent formally discharged 2 of them, suspended another for 3 days, and issued disciplinary warnings to the remaining 12 before reinstating them. "This does not suggest that the May 13 discharge threats were a tactical measure. Rather, it indicates that the Respondent in fact considered the strikers terminated when they walked out."

Charges filed by Carpenters Local 2236 and the Bay Counties District Council of Carpenters; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at San Francisco for 18 days between April 1 and July 1, 1997. Adm. Law Judge James M. Kennedy issued his decision May 15, 1998.