The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PIRELLI CABLE CORPORATION,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
No. 97-1826
Respondent,
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, Local 2236,
Intervenor.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. No. 97-2017
PIRELLI CABLE CORPORATION,
Respondent.
On Petition for Review and Cross-application for Enforcement
of an Order of the National Labor Relations Board.
(11-CA-15987, 11-CA-16121, 11-CA-16149, 11-CA-16160,
11-CA-16300, 11-CA-16365, 11-CA-16475, 11-CA-16536,
11-CA-16670, 11-CA-16708, 11-CA-16727,
11-CA-16754, 11-CA-16844)
Argued: December 3, 1997
Decided: March 31, 1998
Before NIEMEYER and WILLIAMS, Circuit Judges, and JONES,
United States District Judge for the Western District of Virginia,
sitting by designation.
Petition granted in part and denied in part, cross-petition granted in
part and denied in part, and remanded by published opinion. Judge
Williams wrote the opinion, in which Judge Niemeyer and Judge
Jones joined.
_________________________________________________________________
COUNSEL
ARGUED: Charles Preyer Roberts, III, HAYNSWORTH, BALD-
WIN, JOHNSON & GREAVES, Greensboro, North Carolina; Wil-
liam Melvin Haas, III, HAYNSWORTH, BALDWIN, JOHNSON &
GREAVES, Macon, Georgia, for Pirelli. Sharon I. Block,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. Sue D. Gunter, SHERMAN, DUNN, COHEN, LEIFER &
YELLIG, P.C., Washington, D.C., for Intervenor. ON BRIEF: Fred-
erick L. Feinstein, General Counsel, Linda Sher, Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
Charles Donnelly, Supervisory Attorney, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Board. Robert D.
Kurnick, SHERMAN, DUNN, COHEN, LEIFER & YELLIG, P.C.,
Washington, D.C., for Intervenor.
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
Pirelli Cable Corporation (Pirelli) petitions for review from the
National Labor Relations Board's (NLRB or the Board) final order
determining that it had committed violations of§ 8(a)(1), (a)(3), and
(a)(5) of the National Labor Relations Act (the NLRA or the Act). See
29 U.S.C.A. § 158(a)(1), (a)(3) & (a)(5) (West 1973 & Supp. 1997).
The Board cross-petitions for enforcement of its order. For the rea-
sons stated herein, we grant Pirelli's petition for review in part and
deny it in part; we grant the Board's cross-petition for enforcement
in part and deny it in part; and we remand the case to the Board for
further proceedings consistent with this opinion.
2
I.
This case arises out of a number of different disputes that occurred
between the members of the International Brotherhood of Electrical
Workers, Local 2236, AFL-CIO (the Union) and their employer,
Pirelli, a manufacturer of power distribution cables located in Abbe-
ville, South Carolina. The conflicts between the Union and Pirelli cul-
minated in a six-week strike, which took place from May 5, 1994, to
June 20, 1994. The factual discussion that follows is drawn from the
ALJ's findings, the record, and the parties' briefs.
The Union was recognized in 1967 as the exclusive representative
of:
All production and maintenance employees, including ship-
ping and receiving employees, inspectors, and leadmen
employed by [Pirelli] at its Abbeville, South Carolina, plant
and warehouses, but excluding office clerical employees,
professional employees, casual employees, guards, janitors,
and supervisors as defined in the Act.
(J.A. at 932.) Until 1994, the Union and Pirelli had enjoyed a success-
ful labor/management relationship. Successive collective bargaining
agreements were in place from the time the Union was organized in
1967 until 1994 when the present dispute arose.
In March 1994, the Union and Pirelli entered into negotiations for
a new contract to replace the agreement that was due to expire at mid-
night on May 1, 1994. Early in the bargaining process it became clear
to the parties that reaching agreement over the terms of the new con-
tract would be difficult. Pirelli requested that the Union make eco-
nomic concessions due to some financial set-backs it had experienced.
The President of Pirelli came to Abbeville in mid-March to give an
overview of Pirelli's financial position. During his meetings with
employees and with the Union bargaining committee, the President
explained that its paper cable product was no longer viable and that
Pirelli's overall profitability had been reduced.
The Union was not inclined to accept the proposed reductions in
pay and benefits and stated that it was "not interested in entertaining
3
any company proposals that would reduce costs." (J.A. at 352.) The
Union, disgruntled with Pirelli's "hard line" stance, began to speak to
the membership in earnest about the possibility of a strike. Pirelli,
wishing to avoid a strike, decided to circulate a letter to its employees,
explaining its bargaining position and the potential consequences of
a strike.
On April 20, 1994, a letter (the Q & A letter) was sent to all Pirelli
employees expressing Pirelli's concerns about a potential strike and
encouraging the employees to continue good faith negotiations. The
two-page body of the letter addressed the financial difficulties Pirelli
had encountered, noting specifically that both the demand for and
price of their products had declined. Attached to the letter was a two-
page list of nine questions and answers designed to convey informa-
tion about the consequences of a decision to strike. Among the ques-
tions and answers was the following:
Q. If I go out on strike, can I lose my job?
A. Yes. The Company can continue operating the plant,
and can hire strike replacements. If you strike in an attempt
to force the Company to agree to the Union's economic
demands or to force the Company to withdraw its economic
demands, the Company may permanently replace you.
When the strike ends you would not have a job if you had
been permanently replaced.
(J.A. at 520.)
After the Q & A letter was circulated, the Union requested that
Pirelli produce its "last, best, and final" offer. On May 1, 1994, the
Union held a meeting at which it presented Pirelli's proposed contract
to the membership. Additionally, the Union leaders discussed three
unfair labor practice charges that they had filed with the NLRB's
regional office on April 28, 1994. Because of these charges, the
Union president informed the members that if they voted to strike, the
strike would most likely be classified as an unfair labor practice
strike, rather than as an economic strike. The latter classification
would prevent striking workers from being permanently replaced.1
_________________________________________________________________
1 Section 2(3) of the Act provides that workers "whose work has ceased
as a consequence of, or in connection with, any current labor dispute or
4
Approximately 200 employees attended the meeting and 97% of them
voted to reject Pirelli's proposed contract and to go out on strike.
Union leadership, however, obtained the members' consent to return
to the bargaining table.
As of midnight, May 1, 1994, Pirelli determined that it had reached
a bargaining impasse with the Union and unilaterally instituted the
terms of the "last, best, and final" offer. The parties negotiated further.
Union leadership presented a revised proposal to the membership on
May 5, 1994. The proposal was rejected by 94% of those voting.
After the vote, the Union called a strike. The workers began their
strike at noon on May 5, 1994, and the strike continued until June 20,
1994. During the strike Pirelli hired and trained replacement workers.
Additionally, several striking workers crossed the picket line and
returned to their jobs. As a result, the plant continued to operate while
the Union was on strike.
On May 18, 1994, shortly after the strike was called, Pirelli sent a
registered letter to its employee, James McCord. McCord was on dis-
ability leave and was receiving workers' compensation benefits as the
result of a job-related injury to his foot. The letter stated that the per-
sonnel office understood that McCord was available for light duty
work, and that if he did not report to the personnel director within
twenty-four hours for assignment, he would be classified as a striker.
McCord reported to the personnel office where they offered him a job
_________________________________________________________________
because of any unfair labor practice" retain employee status. 29 U.S.C.A.
§ 152(3) (West 1973). "Employee Status," however, has a different
meaning depending upon whether the strike is an economic strike or an
unfair labor practice strike. Unfair labor practice strikers are entitled to
immediate reinstatement upon their unconditional offer to return to work
regardless of whether replacement workers have been hired by the
employer during the strike. See Mastro Plastics Corp. v. NLRB, 350 U.S.
270, 278 (1956). On the other hand, an employer is not required to return
economic strikers to work immediately, nor is the employer required to
displace replacement workers hired during a strike. See Winn-Dixie
Stores, Inc. v. NLRB, 448 F.2d 8, 12 n.11 (4th Cir. 1971); Laidlaw Corp.
v. NLRB, 414 F.2d 99, 105 (7th Cir. 1969).
5
in the die shop. McCord declined the position in the die shop because
his foot injury prevented him from wearing the required safety shoes.
No other light duty positions were offered, and Pirelli proceeded to
classify McCord as a striker and terminated his insurance benefits.
On June 20, 1994, the Union president contacted Pirelli's chief
negotiator and requested that the parties enter into further negotia-
tions. Specifically, he inquired whether Pirelli would return all strik-
ing workers to their jobs with no reduction in seniority and pay them
an "attitude bonus." Pirelli responded that those terms were not agree-
able. Nevertheless, the Union president tendered a letter to Pirelli,
offering the strikers' unconditional return to work.
Pirelli advised the Union president that replacement workers had
been hired and that the striking employees would not immediately be
able to return to their jobs. Instead, all workers who had an interest
in returning to Pirelli would be placed on a preferential hiring list,
ranked in order of seniority. The Union president signed an agreement
with Pirelli that stated, "[a]s openings occur employees shall be
returned in the order of their placement on that list and in accordance
with their qualifications to perform the work available." (J.A. at 526.)
Despite the establishment of the preferential hiring list, Pirelli fol-
lowed its customary procedure of posting open jobs for internal bid-
ding. That procedure allowed workers in the plant to express an
interest in open jobs before they would be filled with workers from
outside the plant. As a result, the most desirable job openings were
often filled through the bidding procedure before workers on the pref-
erential hiring list were contacted. Additionally, Pirelli's personnel
department made efforts to reduce the number of employees on the
list. Often, workers were removed when Pirelli obtained information
from outside sources that they had begun full-time employment with
benefits elsewhere. Pirelli sent such workers written notification that
they had been removed from the preferential hiring list.
In June 1994, shortly after the strike had ended, Pirelli's Abbeville
plant manager, during a discussion with several employees, claimed
that Pirelli intended to engage in delaying tactics and continue the liti-
gation of the disputes arising from the strike for so long that any
ordered payments would have to be made to strikers' grandchildren.
6
He further stated that certain workers would not be recalled from the
preferential hiring list because of their participation in the strike and
other Union activities.
In July 1994, Pirelli's employees circulated a petition to de-certify
the Union as the exclusive collective bargaining representative. The
petition garnered approximately 127 signatures. The petition was
presented to Pirelli, and on August 1, 1994, Pirelli withdrew recogni-
tion from the Union. Because it no longer considered the Union to be
the representative of its employees, Pirelli did not provide information
to the Union, stopped processing grievances, and made many other
unilateral changes to employment terms.
Pirelli continued to maintain the preferential hiring list long after
the strike had ended and the Union was no longer active at the Abbe-
ville facility. One employee called back to work from the preferential
hiring list on September 24, 1995, Charles Tinch, was assigned to a
position on the night shift -- 11:00 p.m. to 7:00 a.m. -- despite his
sleep apnea condition. Although prior to the strike Tinch would often
sleep during his shifts, Pirelli made multiple notations in his person-
nel file but did not formally discipline him for sleeping. Upon his
recall, however, the personnel department questioned him extensively
about the status of his sleep apnea condition and noted that based on
the number of recorded instances of infractions in his record that he
would have to improve his work performance. When Tinch's supervi-
sor witnessed him sleeping during work hours on October 24, 1995,
he was terminated.
II.
As a result of the foregoing events, the Union filed several unfair
labor practice charges between April 1994 and October 1995. The
Board's General Counsel issued complaints charging Pirelli with vio-
lations of § 8(a)(1), (a)(3), and (a)(5), see 29 U.S.C.A. § 158(a)(1),
(a)(3) & (a)(5) (West 1973), of the NLRA based upon allegations that
Pirelli was or had been: (1) interfering, coercing and restraining its
employees' exercise of rights guaranteed under § 7 of the Act by
using the Q & A letter of April 20, 1994, to threaten the employees
with job loss if they engaged in lawful strike activity; (2) refusing to
immediately reinstate unfair labor practice strikers; (3) refusing to
7
bargain collectively with the Union by unilaterally implementing
changes in the job bidding procedure, shift schedules, lead person
wages, vacation requests, shift swapping, shift selection, health insur-
ance coverage, die control job requirements, attendance policy, num-
ber of allowable medical excuses, perfect attendance credit system,
and call-in policy; (4) refusing to bargain collectively with the Union
by withdrawing recognition of the Union; (5) refusing to bargain col-
lectively with the Union by failing to provide the Union with an
updated seniority list and copies of correspondence with employees;
(6) threatening to "drag out" the litigation and stating that certain
union officials would not be recalled because of their participation in
the strike; and (7) refusing to bargain collectively with the Union by
failing to abide by the terms of the grievance procedure.2
Two hearings regarding these allegations were held before the
same ALJ on July 17-19, 1995, and May 28, 1996, in which the mer-
_________________________________________________________________
2 Complaints were also issued by the General Counsel on the following
unfair labor practice charges: (1) threatening employees that positions
would be eliminated in order to avoid reinstating economic strikers; (2)
filling job vacancies through an internal bid procedure rather than
through the preferential hiring list; (3) refusing to allow workers on the
preferential hiring list to bid on job vacancies; (4) assigning supervisors
to perform bargaining unit work; (5) refusing to reinstate Ricky Fergu-
son, William Riley, Jr., and John Buddy Wilson; (6) removing Samuel
Flemming from the preferential hiring list; (7) failing to reinstate strikers
in accordance with the agreement with the Union; (8) refusing to recall
Howard Gray and James Cannady; (9) hiring temporary employees
rather than recalling strikers; (10) terminating the employment rights of
Winston Sparks, Franklin Page, Robert Prince, Eugene Gray, Samuel
Brownlee, Kevin Sellers, Timothy Sparks, Stanley Chiles, Kim Ashley,
Melvin Ashley, James Coleman, Robert Donaldson, Bernard Freeman,
Wesley Gibson, Larry Gray, Dexter Harris, James Oliver, Bobby Lee
Paul, Rhett Simpson, Johnny Slay, Lonnie Thompson, and Walter M.
Anderson because they had obtained other employment; and (11) failing
to recall un-reinstated strikers in accordance with the agreement with the
Union. These charges were addressed by the ALJ in alternative holdings
and were not addressed by the Board. Pirelli raises on appeal only the
final determinations made by the Board. See 29 U.S.C.A. § 160(f) (West
1973) (providing that an aggrieved party may file a petition for review
only for final orders of the Board).
8
its of the unfair labor practice complaints were litigated. As a result,
the ALJ issued two opinions. In the first Decision and Order
(Pirelli I), the ALJ determined that the question and answer concern-
ing the possibility of hiring replacement workers contained in the
Q & A letter was an unlawful threat of termination in violation of
§ 8(a)(1) of the NLRA. He found that the letter caused employee
anger and that their anger was a contributing cause of the strike. As
a result, he concluded that the May 5, 1994, strike was an unfair labor
practice strike.3 Because the strike was an unfair labor practice strike,
the ALJ determined that Pirelli's failure immediately to reinstate the
workers upon their unconditional offer to return to work violated
§ 8(a)(3) of the NLRA. The ALJ further determined that Pirelli
unlawfully de-certified the Union because unremediated unfair labor
practices at the plant tainted the de-certification petition. Conse-
quently, because the Union de-certification was improper, the ALJ
held that Pirelli's unilateral changes in employment terms and condi-
tions were violative of § 8(a)(5) of the Act. Additionally, the ALJ
determined that Pirelli's termination of James McCord, who had been
on disability leave, was a violation of § 8(a)(1), (a)(3), and (a)(5) of
the NLRA. Finally, the ALJ held that statements made by the plant
manager informing employees that Pirelli intended to drag out the liti-
gation of this matter and would make efforts not to reinstate the strik-
ers were violative of § 8(a)(1) of the Act.
As a remedy for the unfair labor practices resolved in Pirelli I, the
ALJ ordered the reinstatement of 154 workers.4 Additionally, the ALJ
_________________________________________________________________
3 The ALJ also made several alternative holdings in Pirelli I assuming,
arguendo, that the strike was an economic strike. He held that Pirelli vio-
lated § 8(a)(1) and (a)(3) of the Act when it: delayed recalling economic
strikers by filling jobs from the pool of replacement workers through a
new bidding procedure; required workers to return a letter before they
were placed on the preferential hiring list; combined jobs and eliminated
positions without proof of a business justification for doing so; made dis-
tinctions on its preferential hiring list among workers who had individu-
ally made an unconditional offer to return to work and workers who were
part of the Union's unconditional offer to return to work; terminated
Samuel Flemming and John Wilson; refused to recall Ricky Ferguson;
and failed to reinstate William Riley.
4 The ALJ ordered that Pirelli offer "full reinstatement to their former
jobs, or if those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privileges previ-
ously enjoyed and discharging if necessary any replacement employees
in those positions." (J.A. at 940.)
9
ordered Pirelli to make the former strikers whole for their lost earn-
ings and benefits. The ALJ also ordered recognition of and bargaining
with the Union.
In the second Decision and Order (Pirelli II ), the ALJ assumed
arguendo that the strike was an economic strike and determined that
Pirelli failed to meet the burden of proof necessary to justify the ter-
mination of workers from the preferential hiring list. The ALJ held
that Pirelli terminated workers without proof that each had attained
"substantially equivalent employment with another employer so as to
extinguish his rights as an employee with his original employer
against whom he engaged in a strike." (J.A. at 945.) Further, the ALJ
determined that Pirelli violated § 8(a)(1), (a)(3), and (a)(5) of the Act
when it rehired former strikers through a temporary agency, treating
them as new employees, rather than recalling them from the preferen-
tial hiring list. Finally, the ALJ determined that the firing of Charles
Tinch was a result of anti-union discrimination in violation of
§ 8(a)(1) and (a)(3) of the NLRA. In Pirelli II the remedy for the
unfair labor practices included the reinstatement, with full seniority
and financial restitution, of twenty-three workers, including Tinch.5
The Board reviewed Pirelli I and Pirelli II as consolidated cases
and addressed the ALJ's determinations in a single opinion. The
Board affirmed the ALJ's determination that the section of the
Q & A letter discussing whether strikers could lose their jobs consti-
tuted an unfair labor practice in violation of § 8(a)(1) of the Act. The
Board therefore also affirmed the ALJ's determination that the strike
was an unfair labor practice strike.6 Thus, it did not review any of the
ALJ's determinations grounded on the assumption that the strike was
an economic strike. Additionally, the Board held that, without regard
to whether the strike was an economic or unfair labor practice strike,
_________________________________________________________________
5 These workers had already been ordered reinstated in Pirelli I. The
Pirelli II opinion, however, was premised entirely on the Board's possi-
ble rejection of the Pirelli I determination that the strike was an unfair
labor practice strike.
6 As a result of this unfair labor practice determination, the Board
affirmed the ALJ's finding that the refusal to reinstate strikers upon their
unconditional offer to return to work was an unfair labor practice in vio-
lation of § 8(a)(1) & (a)(3) of the Act.
10
Pirelli committed unfair labor practices when it discriminatorily ter-
minated Charles Tinch and James McCord. Further, the Board
affirmed the determination that the threat made by the plant manager
to prevent certain strikers' reinstatement and "drag out" the present
litigation was an unfair labor practice.7 (J.A. at 926.) Finally, the
Board affirmed the ALJ's holding that Pirelli violated § 8(a)(5) by
unilaterally withdrawing recognition from the Union. Consequently,
the Board found that the unilateral changes in employment terms,
beginning in August 1994, were also violations of the Act. Thus, the
Board ordered that Pirelli reinstate 155 workers and make them whole
for their financial losses.8 The Board also ordered recognition of, and
upon request, bargaining with, the Union.
Pirelli petitions for review on several grounds. First, Pirelli argues
that the Board's conclusion that the strike was an unfair labor practice
strike rather than an economic strike is neither supported by substan-
tial evidence nor consistent with the Act. Therefore, Pirelli contends
that all conclusions flowing from that determination are in error. Sec-
ond, Pirelli contends that the de-certification of the Union was lawful
and that therefore the Board's determination that it made unlawful
unilateral changes to the terms and conditions of employment at the
plant is not supported by substantial evidence. Third, Pirelli disputes
the Board's determination that its former employees James McCord
and Charles Tinch were terminated in violation of the Act. The Board
cross-petitions for enforcement of its order.9
Because we agree with Pirelli that the Board's holding that the
strike was an unfair labor practice strike was in error, we reverse the
Board's order on that point and we remand the case for reconsidera-
tion in light of our determination that the strike was an economic
strike. Additionally, we find that the Board's determination that the
de-certification petition was tainted (and therefore could not provide
"good faith doubt" for the Union de-recognition) was based upon
_________________________________________________________________
7 Pirelli does not appeal this determination. Therefore, the Board's
order regarding this unfair labor practice shall be enforced.
8 One worker had been inadvertently omitted from the ALJ's order.
9 The Union is a party to this appeal as an intervenor. It simply argues
that we should enforce the Board's unfair labor practice determinations
in all respects.
11
faulty analysis. Thus, we reverse the Board's order on that point as
well. Consequently, all unfair labor practice determinations stemming
from the unilateral imposition of changes in the terms and conditions
of employment after the Union was de-certified in August of 1994
must also be reversed. Further, because we determine that Pirelli met
its burden of proving that Charles Tinch was terminated on a lawful,
non-discriminatory ground, we reverse the Board's order as to Tinch.
Finally, we agree that James McCord was unlawfully terminated in
violation of the NLRA, and we enforce the Board's order in part.
III.
Pirelli challenges several of the Board's unfair labor practice find-
ings on the basis that substantial evidence does not support the
Board's application of the law to the facts of its case.
The Board's legal interpretations of the NLRA are entitled to defer-
ence. See Holly Farms Corp. v. NLRB, 116 S. Ct. 1396, 1406 (1996).
If the Board's interpretations are rational and consistent with the Act,
they will be upheld by reviewing courts. See Fall River Dyeing &
Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987). In mixed questions,
the Board's application of legitimate legal interpretations to the facts
of a particular case should be upheld if they are supported by substan-
tial evidence based upon the record as a whole. See id.; Beth Israel
Hospital v. NLRB, 437 U.S. 483, 501 (1978). Likewise, the Board's
factual determinations are "conclusive" if supported by "substantial
evidence upon the record considered as a whole." 29 U.S.C.A.
§ 160(e) (West 1973); see also Universal Camera Corp. v. NLRB, 340
U.S. 474, 493 (1951). Substantial evidence is "more than a scintilla,"
but "less than a preponderance." Richardson v. Perales, 402 U.S. 389,
401 (1971). Substantial evidence is "such relevant evidence as a rea-
sonable mind might accept as adequate to support a conclusion."
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see also
Allentown Mack Sales & Serv., Inc. v. NLRB, 118 S. Ct. 818, 823
(1998) (describing substantial evidence as enough evidence so that
"on [the] record it would have been possible for a reasonable jury to
reach the Board's conclusion"). Substantial evidence review is an
objective assessment of the sufficiency of the evidence. See Allentown
Mack, 118 S. Ct. at 828.
12
"In searching `the whole record' for substantial evidence, a review-
ing court `must take into account whatever in the record fairly
detracts' from the Board's fact finding as well as evidence that sup-
ports it." Soule Glass & Glazing Co. v. NLRB , 652 F.2d 1055, 1073
(1st Cir. 1981) (quoting Universal Camera, 340 U.S. at 487-88.)
"When the Board purports to be engaged in simple factfinding, . . .
it is not free to prescribe what inferences from the evidence it will
accept and reject, but must draw all those inferences that the evidence
fairly demands." Allentown Mack, 118 S. Ct. at 829. Courts perform-
ing substantial evidence review, therefore, must examine whether the
Board considered all of the reasonable inferences compelled by the
evidence in reaching its decision. See id.
The Board may draw different inferences from the facts and may
reach different legal conclusions than did the ALJ. See American
Thread Co. v. NLRB, 631 F.2d 316, 320 (4th Cir. 1980). Such devia-
tions from the ALJ's inferences or conclusions are also reviewed
under the substantial evidence standard. See Universal Camera, 340
U.S. at 496. Decisions by the Board, however, to make differing cred-
ibility determinations than did the ALJ are given closer scrutiny by
reviewing courts because the Board did not have the opportunity to
observe the witnesses. See id. at 496-97.
We review the Board's decision accordingly.
IV.
A.
Whether a strike is an "unfair labor practice strike" or an "eco-
nomic strike" has a significant effect on the rights and responsibilities
of management and labor. Section 2(3) of the Act provides that work-
ers "whose work has ceased as a consequence of, or in connection
with, any current labor dispute or because of any unfair labor prac-
tice" retain employee status. 29 U.S.C.A. § 152(3) (West 1973). Both
unfair labor practice and economic strikers are therefore considered
"employees" both during and after the strike but the contours of their
employee status differ significantly depending upon whether the
strike is classified as an unfair labor practice strike or as an economic
strike.
13
When a strike is determined to be an unfair labor practice strike,
striking employees cannot lose their jobs as a result of the strike, even
when replacements have been hired. See Mastro Plastics Corp. v.
NLRB, 350 U.S. 270, 278 (1956). Unfair labor practice strikers are
entitled to immediate reinstatement upon their unconditional offer to
return to work, or if reinstatement is a result of litigation, reinstate-
ment with back pay. See id.; NLRB v. International Van Lines, 409
U.S. 48, 50-51 (1972); NLRB v. Fleetwood Trailer Co., 389 U.S. 375,
378 (1967). In contrast, economic strikers need not be immediately
returned to work, nor do they enjoy the right to displace replacement
workers hired during a strike. See Winn-Dixie Stores, Inc. v. NLRB,
448 F.2d 8, 12 n.11 (4th Cir. 1971); Laidlaw Corp. v. NLRB, 414 F.2d
99, 105 (7th Cir. 1969).
"An unfair labor practice strike is strike activity initiated in whole
or in part in response to unfair labor practices committed by the
employer." 2 Developing Labor Law at 1100 (Patrick Hardin, et al.
eds., 3d Ed. 1992) (citing NLRB v. Mackay Radio & Tel. Co., 304
U.S. 333 (1938)). An economic strike is one that is not caused by an
unfair labor practice. See id.
Pirelli challenges the Board's determination that the 1994 strike at
its Abbeville plant was an unfair labor practice strike. It does so on
two grounds. First, Pirelli alleges that the Q & A letter was neither
threatening nor coercive, and thus was not violative of § 8 (a)(1) of
the Act.10 Therefore, it contends that it committed no unfair labor
practice prior to the strike. Additionally, Pirelli contends that even if
its Q & A letter was threatening or coercive, the letter was not a con-
tributing cause of the strike. We address these arguments in turn.
1.
In Be-Lo Stores v. NLRB, 126 F.3d 268, 285-86 (4th Cir. 1997), we
recently addressed the issue of when a communication from an
employer to its employees is threatening or coercive in violation of
_________________________________________________________________
10 Section 8 (a)(1) provides that"[i]t shall be an unfair labor practice
for an employer . . . to interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed in section 157 of this title." 29
U.S.C.A. § 158(a)(1) (West 1973).
14
§ 8(a)(1) of the Act. In Be-Lo Stores, we reversed the Board's deter-
mination that the distribution of a mock pink slip, one sentence of
which read, "you may want to look at what the[Union] got for their
former dues payer[s] in this area -- a pink slip," was coercive and
threatening. Be-Lo Stores, 126 F.3d at 285 (internal quotation marks
and citation omitted).
We determined that, when the statement was considered in context,
the communication was neither threatening nor coercive within the
meaning of § 8(a)(1) of the Act. Instead, the employer's communica-
tion was only an attempt to explain the possible consequences of
unionization at the store and was therefore a "carefully phrased pre-
diction as to demonstrably probable consequences beyond Be-Lo's
control." Id. at 286 (internal quotation marks, alteration, and citation
omitted). Because the pink slip was not a threat, but rather was an
explanation of the company's concerns regarding the possible eco-
nomic consequences of unionization, it was "free speech and legiti-
mate propaganda" protected by § 8(c) of the Act. Id.; 29 U.S.C.A.
§ 158(c) (West 1973).
As it did in Be-Lo Stores, the Board in this case examined one iso-
lated paragraph of a four page letter and concluded that the Q & A
letter was threatening and coercive because it was"threatening
employees with the loss of their jobs if they went out on strike." (J.A.
at 924.) In context, Pirelli's statement that employees could "lose
their jobs" if they go out on strike is not threatening, it is explanatory.
Pirelli took great pains in its letter to first explain the economic ratio-
nale for its bargaining position. The letter stated that "Pirelli Cable
North America (PCNA) has lost tens of millions of dollars . . . .
Demand for our products has declined 30% and our prices are down
20%. This means we sell less product and for the product we do sell
we get a lower price." (J.A. at 518.) The letter continued to explain:
"[t]hese are dire economic times for PCNA and all its employees.
Like many other companies in these difficult times, PCNA has had
no choice but to take actions to reduce our costs in order to offset
declining volume and prices." (J.A. at 518.) As a preface to the ques-
tions and answers attached to the letter Pirelli further stated "[a]s all
of us continue to hope that an agreement can be achieved at the bar-
gaining table, it is important that everyone understand some of the
basic realities of a work stoppage." (J.A. at 519.)
15
Like the mock pink slip in Be-Lo Stores, the Q & A letter sent by
Pirelli explained economic circumstances beyond Pirelli's control that
had the potential for affecting the future of the bargaining unit
employees. The specific Q & A that forms the basis of the unfair
labor practice charge states:
Q. If I go out on strike, can I lose my job?
A. Yes. The Company can continue to operate the plant,
and can hire strike replacements. If you strike in an attempt
to force the Company to agree to the Union's economic
demands or to force the Company to withdraw its economic
demands, the Company may permanently replace you.
When the strike ends, you would not have a job if you had
been permanently replaced.
(J.A. at 520.)
This Q & A was an explanation of bargaining unit workers'
Laidlaw rights and was not a threat of reprisal for strike activity. See
Laidlaw Corp. v. NLRB, 414 F.2d 99, 105 (7th Cir. 1969); see also
Clinch Valley Clinic v. NLRB, 516 F.2d 996, 998 (4th Cir. 1975)
(adopting the Laidlaw rationale). Laidlaw rights include the employ-
er's right to fill open positions during a strike with replacement work-
ers. See Mackay, 304 U.S. at 345-46; accord Laidlaw, 414 F.2d at
105. If the strike is an economic strike, the employer need not termi-
nate replacement workers when strikers seek to return to work. See
NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 379 (1967); Laidlaw,
414 F.2d at 105. The employer need only place its strikers on a pref-
erential rehiring list and call them back when an opening becomes
available. See Laidlaw, 414 F.2d at 106. The Q & A simply con-
veyed to workers the realities of striking over economic matters: Eco-
nomic strikers may be replaced by replacement workers. See Winn-
Dixie Stores, Inc. v. NLRB, 448 F.2d 8, 12 n.11 (4th Cir. 1971). That
the Q & A letter, although it did not make an incorrect statement, did
not contain a detailed explanation of Laidlaw reinstatement rights and
did not make the statement that strikers remained employees of Pirelli
does not alter our disposition. An explanation of the possible results
of labor/management tensions does not become threatening or coer-
cive merely because it is in plain English rather than in legal jargon.
16
Therefore, following the analysis set forth in Be-Lo Stores, we deter-
mine that Pirelli's Q & A letter is not threatening or coercive.
2.
Even assuming that the Q & A letter violated§ 8(a)(1), we would
reverse the Board's determination on causation grounds. It is well set-
tled that there must be a causal link between the unfair labor practice
and the strike before the strike can be classified as an unfair labor
practice strike. See Winn-Dixie Stores, 448 F.2d at 11; NLRB v. Bir-
mingham Publishing Co., 262 F.2d 2, 9-10 (5th Cir. 1959). There
must be proof that an unfair labor practice was a contributing cause
of the work stoppage. See Allied Mech. Servs., Inc. v. NLRB, 113 F.3d
623, 626 (6th Cir. 1997); Capitol Steel & Iron Co. v. NLRB, 89 F.3d
692, 698 (10th Cir. 1996); NLRB v. Crystal Springs Shirt Corp., 637
F.2d 399, 404 (5th Cir. 1981); General Drivers & Helpers Union,
Local 662 v. NLRB, 302 F.2d 908, 911 (D.C. Cir. 1962). The mere
fact that an unfair labor practice occurred before a strike is not suffi-
cient proof of causation. See Road Sprinkler Fitters Local No. 669 v.
NLRB, 681 F.2d 11, 20 (D.C. Cir. 1982) (noting that "mere awareness
of unfair labor practices is insufficient to establish [the] causal con-
nection"). There must be evidence that the strike was motivated by
the employees' desire to vindicate their rights under the NLRA. See
Winn-Dixie Stores, 448 F.2d at 11. Because the single Q & A from
the Q & A letter is the basis for the sole unfair labor practice deter-
mined to have occurred before the strike, substantial evidence must
support the determination that the threat contained in the letter was a
contributing cause of the strike. Based upon our review of the record,
substantial evidence does not support the finding that the workers
were angered by the "threat of job loss in the letter." Further, there
is no substantial evidence to support the conclusion that the workers
were at all motivated to strike because of threats of interference, coer-
cion, or restraint contained in the letter. See 29 U.S.C.A. § 158(a)(1)
(West 1973).
In its opinion, the Board adopted the factual findings made by the
ALJ in Pirelli I regarding the Q & A letter. The ALJ specifically
credited the testimony of three union-related individuals in reaching
his conclusion that the Q & A letter was a contributing cause of the
strike at the Pirelli plant. First, he cites the"unrebutted" testimony of
17
Han Massey. At the time of the strike, Massey was not an employee
at the Pirelli plant. Rather, he was the international representative of
the Union whose job included working with local bargaining units
during periods of labor/management contract negotiation. Massey's
testimony in reference to the Q & A letter is quite limited. He testi-
fied that the Union's bargaining committee was upset by the letter
because the committee members thought that the letter undermined
their authority. Massey further explained that, during the May 1 con-
tract ratification meeting, he told the Union membership that an unfair
labor practice charge had been filed because of the Q & A letter.11
Massey's testimony, therefore, provides no support for the conclusion
that the members felt threatened or coerced by the Q & A letter. As
he was not an employee of Pirelli, nor a member of the bargaining
unit, his feelings about the Q & A letter are completely irrelevant to
the causation question before us. He could not vote to strike.
The ALJ also credited the testimony of David Land, the local
Union president. Like Massey, Land testified that he felt that the letter
would undermine the Union. He perceived that "the people were get-
ting a little angry about [the letter]." 12 He also stated that he told the
Union membership that "I felt like they were threatening us with that
letter. We'd been in negotiations before, we'd never seen anything
_________________________________________________________________
11 Massey stated that "[s]ome of the people wanted to know if filing
this charge would protect them or what would happen if they went on
strike and there was a charge filed, as they were quite upset about the let-
ter." (J.A. at 89.) No evidence on the record clarifies why the workers
were upset. The Union members received the Q & A letter at home
before the Union explained the differences between an unfair labor prac-
tice strike and an economic strike. Without forewarning from the Union
that Pirelli could continue to operate the plant and hire permanent
replacements for economic strikers, it is likely that receipt of the Q & A
letter would cause shock and anxiety. Being upset as a result of the sur-
prising, but factually correct, contents of the letter is distinguishable from
reacting to a threat. Only the latter response can form the basis of an
unfair labor practice.
12 Land's testimony does not provide an explanation regarding why he
felt the union members were angry about the letter. In his testimony, he
does not refer to any specific conversations he had with union members.
Further, his testimony omits any reference as to why the union members
were angry. See ante n.11.
18
like this [letter] before, and we felt like it was threats by them to try
to force us into taking what they wanted it to take." (J.A. at 175.)
Land's statement did not convey a feeling that Pirelli threatened the
members with termination should they vote to go out on strike.
Rather, his statement conveys his feeling that Pirelli's decision to
communicate directly with its own employees threatened the Union's
bargaining position.
Finally, the ALJ stated that the testimony of Ernest Warren sup-
ported his conclusion that the letter was a contributing cause of the
strike. Warren was a member of the Union negotiating committee.
When asked what was said at the ratification meeting about the letter,
Warren testified that the Union leadership discussed that the letter
was the basis of one of the unfair labor practice charges and that the
Union leaders assured the workers that the strike was likely to be an
unfair labor practice strike because of the charges. Warren's testi-
mony is limited to a discussion of the filing of unfair labor practice
charges and is not at all relevant to the Union membership's response
to the letter. Therefore, it provides no evidentiary support for the
proposition that the Q & A letter was a contributing cause of the
strike.
"[I]n examining the union's characterization of the purpose of the
strike, the Board and court must be wary of self-serving rhetoric of
sophisticated union officials and members inconsistent with the true
factual context." Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055,
1080 (1st Cir. 1981) (citing NLRB v. Colonial Haven Nursing Home,
Inc., 542 F.2d 691, 705 (7th Cir. 1976), and Winter Garden Citrus
Prods. Inc. v. NLRB, 238 F.2d 128, 130 (5th Cir. 1956)); see also
Winn Dixie Stores, 448 F.2d at 11-12 (holding that substantial evi-
dence did not support Board's finding of unfair labor practice strike
where conclusion was based on self-serving testimony of four work-
ers); F.L. Thorpe & Co. v. NLRB, 71 F.3d 282, 291 (8th Cir. 1995);
SKS Die Casting & Machining, Inc. v. NLRB, 941 F.2d 984, 992 (9th
Cir. 1991); cf. Murphy v. Keystone Steel & Wire Co., 61 F.3d 560,
568 (7th Cir. 1995) (addressing self-interested testimony of union
officials in dispute over retirement funds).
Here, the ALJ and the Board exclusively credited self-serving testi-
mony of three Union officials -- an international Union representa-
19
tive, the local Union president, and a member of the Union
negotiating team -- when it determined that the Q & A letter was a
contributing cause of the strike. As we noted in Winn-Dixie Stores,
such testimony is highly "suspect." 448 F.2d at 11. Not only is the tes-
timony cited by the ALJ solely from Union officials, but the state-
ments fail to advance the argument that the Union members were
motivated to strike because they had an interest in vindicating their
right to be free from coercion. See 29 U.S.C.A. § 158(a)(1) (West
1973). The testimony demonstrates that the Union officials were
angry because they felt that the letter from Pirelli undermined the
Union's bargaining position.
Evidence of Union officials' ire is not sufficient to constitute sub-
stantial evidence that the letter was a contributing cause of the strike.
Here, the Board, without substantial evidence of the membership's
reaction to the letter, equates Union leadership sentiment with Union
membership sentiment. In so doing, the Board does not make a rea-
sonable inference based upon the evidence. Instead, it makes a leap
of faith. The conclusion that the rank and file had the same reaction
as members of the negotiating committee is simply not substantiated
by the record.
Rather than demonstrating that the Union leadership was motivated
by grassroots member complaints to file an unfair labor practice
charge on the basis of the letter, the evidence cited by the ALJ leads
to a contrary conclusion -- that the Union leadership made a strategic
decision to file an unfair labor practice charge because the charge had
the potential of shielding Union members from the consequences of
an economic strike. A strategic decision by savvy Union officials
does not lead to any inference regarding the motivation of the Union
membership. The Board failed to draw all of the reasonable infer-
ences presented by the evidence, and perhaps it failed to draw the
most reasonable conclusion: that the membership was more motivated
to vote to strike in the presence of the unfair labor practice charge
than in its absence, but not because they were angered by the "threats"
contained in the letter. Members were reassured by the Union offi-
cials that the unfair labor practice charge would protect them from
being permanently replaced. As the testimony cited by the ALJ indi-
cates, at the meeting in which the members voted on Pirelli's final
offer, Union officials stood up and explained the difference between
20
an unfair labor practice strike and an economic strike and reassured
the membership that because of the unfair labor practice charges that
had been filed, the strike was likely to be classified as an unfair labor
practice strike.
To conclude that union members would be more motivated to vote
in favor of an unfair labor practice strike than in favor of an economic
strike is a reasonable inference. Unfair labor practice strikers have
more rights and protections. The motivation to have one's cake and
eat it too -- attaining the protections of unfair labor practice strikers
while striking for economic reasons -- is not motivation to vindicate
one's NLRA-protected rights and thus cannot lead to a finding of cau-
sation. We cannot hold that an unfair labor practice was a contributing
cause of the strike merely because the Union members' votes were
premised on leaders' reassurances that the members would enjoy the
protections concomitant with the designation "unfair labor practice
strike."
An unfair labor practice strike is a sword to be used by Union
members to vindicate violations of their rights under the NLRA; it is
not a shield to protect their jobs from the potential legitimate conse-
quences of an economic strike. Here, the Union leaders wanted the
unfair labor practice charge to protect union members from the conse-
quences of their refusal to accept their employer's demand for eco-
nomic concessions. The Board, in assessing the case for causation,
does not acknowledge this obvious and reasonable inference. The
Board did not examine all of the reasonable inferences that should be
drawn from the evidence. See Allentown Mack Sales & Serv., 118 S.
Ct. at 824-25. Rather, the Board interpreted the evidence in the light
most favorable to the Union. The Board is not at liberty to accept only
those evidentiary inferences that support the Union's position and
reject all of those that support the employer. See id. Based upon the
evidence before the Board, no reasonable person could have con-
cluded that the membership of the Union was motivated to vindicate
the NLRA-protected right to be free from an employer's coercion or
intimidation.
3.
In summary, because we determine that the Q & A letter was an
explanatory statement of the law, not a threat of termination should
21
the workers vote to strike, see Be-Lo Stores, 126 F.3d 285-86, and it
did not motivate the Union membership to go out on strike, we
reverse the Board's determination that the Q & A letter constituted
an unfair labor practice and reverse the Board's holding that the strike
was an unfair labor practice strike. Therefore, we remand to the Board
for reconsideration of the ALJ's numerous alternative holdings based
upon the initial conclusion that the strike was an economic strike.
B.
Pirelli challenges the Board's holding that it committed violations
of § 8(a)(5) of the Act, which makes it an unfair labor practice "to
refuse to bargain collectively with the representatives of [the]
employees," 29 U.S.C.A. § 158(a)(5) (West 1973), when it withdrew
recognition from the Union on August 1, 1994, and thereafter unilat-
erally implemented changes in the terms and conditions of employ-
ment at the plant. Pirelli attacks the Board's finding that the de-
certification petition was tainted and therefore cannot give rise to a
good faith doubt. It claims that the Board's conclusion is based upon
an erroneous interpretation of the facts and therefore is not based
upon substantial evidence. We agree that the Board based its decision
that the petition was tainted upon an incorrect understanding of the
facts. Additionally, the other bases upon which the Board rested its
conclusion that the petition was tainted are also incorrect. Therefore,
we reverse the Board's determination that the de-certification was
improper.
An employer may not lawfully refuse to bargain with its employ-
ees' certified collective bargaining representative during the term of
a collective bargaining agreement. See 29 U.S.C.A. § 158(a)(5) (West
1973); Auciello Iron Works, Inc. v. NLRB, 116 S. Ct. 1754, 1758
(1996) (explaining that a union enjoys conclusive presumption of
majority status during term of collective bargaining agreement). Upon
expiration of a collective bargaining agreement, a union enjoys a
rebuttable presumption of majority status. See Auciello Iron Works,
116 S. Ct. at 1758. To rebut the presumption, an employer must show
"either (1) the union did not in fact enjoy majority support, or (2) the
employer had a `good-faith' doubt, founded on a sufficient objective
basis, of the union's majority support." NLRB v. Curtin Matheson Sci-
entific, Inc., 494 U.S. 775, 778 (1990). A good-faith doubt is a "genu-
22
ine, reasonable uncertainty about whether [the union] enjoy[s] the
continuing support of a majority of unit employees." Allentown Mack
Sales & Serv., Inc. v. NLRB, 118 S. Ct. 818, 823 (1998).
"A petition signed by at least half of the bargaining unit's members
in which they indicate that they do not wish to be represented by the
union ordinarily constitutes sufficient objective evidence to rebut the
union's presumed majority status." NLRB v. D & D Enters., Inc., 125
F.3d 200, 209 (4th Cir. 1997). Such a petition provides a "good faith
and reasonably grounded doubt, founded upon a sufficient objective
basis." Virginia Concrete Co. v. NLRB, 75 F.3d 974, 979 (4th Cir.
1996).
When, however, evidence is presented by the General Counsel to
show that the employees are disgruntled with union representation
because the employer has committed unfair labor practices that have
negatively impacted the union's efficacy, the petition may be consid-
ered tainted. See D & D Enters., Inc., 125 F.3d at 209. Tainted peti-
tions cannot give rise to a good faith doubt regarding the union's
continuing majority status. See id.
The ALJ determined that the petition was facially insufficient to
provide good faith doubt in the continuing majority status of the
Union because it contained only 127 signatures, which, according to
the ALJ, represented fewer than half of the bargaining unit members.
The Board tacitly reversed the ALJ's assessment of the facial validity
of the petition and based its holding that the de-certification of the
Union was improper solely upon the ground that the petition was
tainted. We agree with the Board's determination on this point. The
ALJ's conclusion that the petition was facially invalid was not sup-
ported by substantial evidence because it was not based upon an accu-
rate calculation of the number of bargaining unit employees at the
time the petition circulated. See Virginia Concrete Co., 75 F.3d at
977-78 (explaining the appropriate procedure for counting bargaining
unit employees). Thus, we proceed to review the Board's holding that
the petition was tainted by unresolved unfair labor practices.
The Board employs a four-factor analysis to determine whether a
de-certification petition has been tainted by an employer's unfair
23
labor practices. See D & D Enters., Inc., 125 F.3d at 209. Those four
factors are:
(1) the length of time between the unfair labor practice and
the de-certification petition; (2) the nature of the employ-
er's illegal acts; (3) any possible tendency to cause
employee disaffection from the union; and (4) the effect of
the unlawful conduct on employee morale, organizational
activities, and membership in the union.
Id.
Applying this four-part analysis, the Board determined that several
unfair labor practices committed by Pirelli had tainted the de-
certification petition it had received in July 1994. The Board found
that the following were serious illegal acts that collectively caused
employee disaffection with the union and harmed morale: (1) the
Q & A letter, (2) the unilateral illegal implementation of new terms
and conditions of employment on May 2, 1994, and (3) the failure to
immediately reinstate the unfair labor practice strikers. Further, the
Board determined that the illegal acts occurred within a very short
time frame of the petition's circulation. Therefore, the Board deter-
mined that Pirelli could not show a good faith doubt regarding the
Union's continuing majority status because the petition was tainted by
"the cumulative effect of [Pirelli's] unlawful conduct." For the rea-
sons that follow, we disagree that the petition was tainted.
First, the Board attributed taint to the illegal Q & A letter. As pre-
viously discussed in Part IV.A.1, we determine that the Q & A letter
does not constitute an unfair labor practice. Therefore it cannot taint
the petition.
Second, in its determination that the petition was tainted, the Board
emphasized that the petition was signed shortly after Pirelli's failure
to reinstate the unfair labor practice strikers. As we stated above,
because the strikers were economic strikers, they were not entitled to
immediate reinstatement. Because the non-reinstatement was not an
unfair labor practice, it cannot taint the de-certification petition.
24
Finally, the Board found that Pirelli violated § 8(a)(5) of the Act
when it unilaterally implemented the terms and conditions of the final
offer on May 2, 1994, noting that Pirelli "does not claim that a bar-
gaining impasse existed" as of May 2, 1994. (J.A. at 925 n.8.) This
unfair labor practice, the Board concluded, caused disaffection among
Union members at the plant, leading to a tainted de-certification peti-
tion.
The Board's statements regarding the § 8(a)(5) charges stemming
from the imposition of the terms of the final offer on May 2, 1994,
are plainly inconsistent with the prior proceedings in the Pirelli case.
By letter dated June 21, 1994, the Board's Regional Director refused
to issue a complaint relating to the Union's charge that Pirelli com-
mitted a § 8(a)(5) violation when it implemented the terms of the final
offer on May 2, 1994. The Regional Director's letter stated, "[u]nder
these circumstances . . . and the presence of apparent irreconcilable
differences outstanding as of April 29, the Employer's declaration of
impasse appears lawful." (J.A. at 674.) On appeal, the Office of the
General Counsel sustained the Regional Director's determination.
(J.A. at 671.) Therefore, the Board erroneously stated that Pirelli had
been found responsible for a § 8(a)(5) violation based upon imple-
mentation of the terms and conditions of the final offer on May 2,
1994, when, in fact, no complaint had been issued on that particular
charge. Additionally, the Board erred when it stated that Pirelli did
not claim that a bargaining impasse existed. Not only had it claimed
that a bargaining impasse existed, but the Regional Director deter-
mined that the declaration of impasse was lawful. Obviously, the por-
tion of the Board's analysis that rests upon a non-existent unfair labor
finding stemming from the May 2, 1994, unilateral imposition of the
terms of the final offer is based upon completely erroneous factual
premises, and therefore also cannot taint the petition.
As a result of the Board's error and our decision that the strike was
an economic strike, the Board's analysis of whether Pirelli had a good
faith doubt supporting its decision to de-certify the Union is invalid.
Therefore we reverse the Board's holding that Pirelli did not have
good faith doubt as to the continuing majority status of the Union. As
a result, we also reverse the Board's decision that Pirelli committed
several § 8(a)(5) violations when it unilaterally changed the terms and
25
conditions of employment in August 1994 after the union was de-
certified.
C.
Pirelli additionally challenges the Board's decisions that it commit-
ted § 8(a)(1) and (a)(3)13 violations when it terminated James McCord
and Charles Tinch. Pirelli claims that the unfair labor practice find-
ings are not supported by substantial evidence and therefore should
be reversed.
1.
Pirelli contends that McCord was available for light duty work and
legitimately was classified as a striker because he failed to accept the
light duty work that was offered to him. The Board's decision, how-
ever, that McCord was unlawfully terminated in violation of § 8(a)(1)
and (a)(3) is supported by substantial evidence. Accordingly, we grant
the Board's cross-petition for enforcement in part.
McCord was on disability leave at the time of the strike because
his foot had been seriously injured. While still on leave, he received
a registered letter at his home telling him that he needed to report to
the personnel office immediately, or face re-classification as a striker.
McCord immediately reported to the personnel office.
McCord's uncontradicted testimony was that the only"light duty"
work offered by Pirelli was not appropriate for his medical condition
because the job required that he wear safety shoes, something he
could not do because of his foot injury. The die shop position that was
offered to him involved lifting heavy spools of cable. Without the
required safety shoes, McCord's recently injured foot would be
unprotected from potential mishaps during the heavy lifting. Accord-
ing to his testimony, when McCord rejected the die shop job because
he could not wear the requisite safety equipment, the Pirelli official
_________________________________________________________________
13 Section 8(a)(3) of the Act classifies "discrimination in regard to hire
or tenure of employment or any term or condition of employment" on the
basis of union membership as an unfair labor practice. 29 U.S.C.A.
§ 158(a)(3) (West 1973).
26
sarcastically offered to put him to work cleaning up his desk. Pirelli
offered no other light duty job options, classified McCord as a striker,
and terminated his disability benefits because he was "on strike."
An employee who is on disability leave because he is physically
unable to work at the time of a strike cannot be categorized as a
striker because his failure to report to work does not reflect a con-
scious decision to withhold employment services. See Texaco, Inc. v.
NLRB, 700 F.2d 1039, 1043 (5th Cir. 1983) (enforcing Board's ruling
that failure to state opposition to strike by workers on disability leave
cannot lead to termination of benefits); NLRB v. Babcock & Wilcox
Co., 697 F.2d 724, 729 (6th Cir. 1983) (stating that when an
employee is on disability leave his mere failure to work during a
strike is not evidence of participation in the strike); E.L. Wiegand
Division v. NLRB, 650 F.2d 463, 474 (3d Cir. 1981) (holding that
employer may not terminate worker's disability benefits when he
publicly supports a strike because disabled employee cannot withhold
employment services).
The record demonstrates that at the time he was summoned into the
Pirelli personnel office McCord still had significant limitations on his
ability to work. Unrebutted testimony illustrates that the only light
duty job offered put his already-injured foot at risk because of his
inability to wear safety shoes. McCord's rejection of the proffered job
reflected a legitimate concern for his health and continuing medical
needs and did not indicate his desire to strike. Therefore, substantial
evidence supports the Board's conclusion that McCord was dis-
charged in violation of § 8(a)(3). The Board's order reinstating
McCord shall be enforced.
2.
The Board also determined that Pirelli had a discriminatory motive
when it terminated Tinch, who was fired after he was found asleep on
the job. Pirelli claims that it followed its usual course of business
when it fired Tinch, and further argues that the record does not pro-
vide substantial proof of discriminatory animus. We agree that there
is not substantial evidence supporting the Board's decision that Tinch
was discriminatorily discharged and we reverse.
27
The Board applies a burden-shifting scheme to determine whether
a discriminatory motive led an employer to discharge an employee in
violation of NLRA § 8(a)(3). See NLRB v. CWI of Md., Inc., 127 F.3d
319, 330-31 (4th Cir. 1997). The General Counsel must prove by a
preponderance of the evidence that the employer was motivated, at
least in part, by anti-union discriminatory animus when it made its
decision. See id. The General Counsel must demonstrate that the
employee had been engaged in protected activity, that the employer
knew of the activity, and that such activity was a substantial or moti-
vating reason for the employer's action. See id. ; ARA Leisure Servs.,
Inc. v. NLRB, 782 F.2d 456, 462 (4th Cir. 1986); NLRB v. Daniel
Construction Co., 731 F.2d 191, 193 (4th Cir.1984). Either direct or
circumstantial evidence may be used. See NLRB v. Low Kit Mining
Co., 3 F.3d 720, 728 (4th Cir. 1993).
If the General Counsel meets its burden of proving those elements
by a preponderance of the evidence, the employer may overcome the
unfair labor practice charge if it can show that the employee would
have been fired even in the absence of union activity. See ARA Lei-
sure Servs., Inc., 782 F.2d at 462. "Thus, an employer might show
that a worker's deficiencies, economic necessity, or a legitimate busi-
ness policy compelled the discharge." Id.
"When confronted with evidence of a legitimate business motive,
General Counsel must prove by a preponderance of the evidence that
union antipathy did actually play a part in the decision to discharge
employees." NLRB v. Instrument Corp., 714 F.2d 324, 327 (4th Cir.
1983). In deciding what motivated the employer, the Board may not
simply declare that the stated reasons for the discharge are pretextual,
rather the General Counsel must put forth substantial evidence that
anti-union animus motivated the decision to terminate. See id. at 327-
28.
As proof that Tinch was the victim of discriminatory animus the
Board relies upon the following: (1) Pirelli interviewed Tinch about
his sleep apnea condition before assigning him to the night shift; (2)
at that interview Pirelli asked him to sign a form indicating that his
condition had improved; (3) Pirelli instructed Tinch's supervisors to
report any problems to personnel; (4) Pirelli thereby treated him as a
new hire on probation rather than as a long time worker; and (5) there
28
was a notation in the termination memorandum that Tinch had been
absent from May 4, 1994, until September 26, 1995, due to the strike.
Pirelli contends that the additional questioning was not at all strike-
related but instead was undertaken out of a general concern that put-
ting Tinch to work on the night shift would exacerbate Tinch's sleep
apnea condition.
Even assuming that the aforementioned evidence is sufficient to
prove by a preponderance of the evidence the General Counsel's ini-
tial burden that the discharge was motivated in part by anti-union dis-
criminatory animus, which we doubt, we determine that on the basis
of the record before us, Pirelli clearly met its burden of showing that
it terminated Tinch for a legitimate non-pretextual business reason
unrelated to his participation in the strike. He was terminated because
his supervisor found him asleep during his shift. Although this was
the first occasion after being recalled during which he was found
asleep, he had been found sleeping on several other occasions during
his tenure at Pirelli. Tinch himself testified that it was his supervisor
at Pirelli who had first advised him to seek medical attention regard-
ing sleeping on the job. His personnel file included many notations
regarding his "sleeping problem." (J.A. at 835.) Additionally, Tinch
testified that while employed at Pirelli prior to the strike he fell asleep
on the job four or five times a night. (J.A. at 696.) Clearly, sleeping
on the job is inappropriate behavior that has nothing to do with union
activity. See Coates v. Johnson & Johnson, 756 F.2d 524, 552-53 (7th
Cir. 1985) (determining that sleeping on duty is a nondiscriminatory
reason for discharge); Thompson v. Leland Police Dept., 633 F.2d
1111, 1114 (5th Cir. 1980) (same). Therefore, Pirelli met its burden
of proving that Tinch would have been terminated even in the absence
of union activity.
Under the Board's burden shifting procedure, the General Counsel
must put forth concrete evidence that Pirelli's explanation was pretex-
tual. See Instrument Corp., 714 F.2d at 327-28. The Board's apparent
conclusion that Pirelli's explanation was pretextual, is not supported
by any evidence in the record. It is well-documented and unrebutted
both that Tinch was asleep on the job when his supervisor found him
and that he had a troubled work history at Pirelli prior to the strike.
Consequently, we reverse the Board's determination that Tinch was
29
discriminatorily discharged in violation of § 8(a)(1) and (a)(3) of the
NLRA.
V.
Based upon the foregoing discussion, we grant Pirelli's petition for
review in part and deny it in part. We grant the Board's cross-petition
for enforcement in part and deny it in part, and we remand for further
consideration consistent with this opinion.
PETITION FOR REVIEW GRANTED IN PART
AND DENIED IN PART; CROSS-PETITION FOR
ENFORCEMENT GRANTED IN PART AND
DENIED IN PART; REMANDED
30