___________

No. 94-3610

___________

F. L. Thorpe & Co., Inc., *

*

Petitioner, *

*

v. *

*

National Labor Relations Board, *

*

Respondent, *

*

United Steelworkers of America, *

AFL-CIO/CLC, *

*

Intervenors. *

___________ On Petition For Review and

Cross-Application for 

No. 94-3911 Enforcement of an Order of the

___________ National Labor Relations Board.

F. L. Thorpe & Co., Inc., *

*

Respondent, *

*

v. *

*

National Labor Relations Board, *

*

Petitioner, *

*

United Steelworkers of America, *

AFL-CIO/CLC, *

*

Intervenor. *

__________

 Submitted: April 10, 1995

 Filed: December 1, 1995

__________
* The HONORABLE RICHARD W. GOLDBERG, Judge, United

States Court of International Trade, sitting by

designation.

 The Honorable Burton Litvack, Administrative Law Judge. 1

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Before MAGILL and HANSEN, Circuit Judges, and GOLDBERG, Judge. *

___________

GOLDBERG, Judge.

F.L. Thorpe & Co., Inc. ("Thorpe" or "the Company") petitions for

review of an order of the National Labor Relations Board ("NLRB") which

concluded that unfair labor practices committed by Company agents converted

an economic strike by the United Steelworkers of America ("the Union") into

an unfair labor practice strike. Thorpe also seeks review of the NLRB's

conclusion that once converted into an unfair labor practice strike,

actions taken by the Company failed to reconvert the strike back into an

economic strike. The NLRB has filed a cross-application for enforcement

of its order. The Union has intervened in support of the NLRB's crossapplication. The court exercises jurisdiction pursuant to 29 U.S.C. §

160(e), (f). Because we find that the NLRB erred as a matter of law in

concluding that the unfair labor practices committed by Company agents

converted the Union's economic strike into an unfair labor practice strike,

we reverse.

I. BACKGROUND

Following a hearing of this matter, the Administrative Law Judge1

("ALJ") made the following findings of fact which the NLRB panel

subsequently adopted. F.L. Thorpe & Co., 315 NLRB No. 22, at 1-2 (Sept.

30, 1994). The Company manufactures and sells Black Hills gold jewelry.

On July 27, 1990, the Union was certified as the exclusive representative

of the Company's production and maintenance employees for purposes of

collective bargaining. The
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parties met 14 times over the ensuing nine months in an unsuccessful effort

to negotiate a first contract.

On April 27, 1991, after learning that a strike was possible, the

Company's general manager, Terry Sanke, drafted a letter to all unit

employees advising them that they had a right to withhold their services

in connection with a strike, or to cross the picket line. The letter also

stated that the Company would continue to operate and that it had the right

to hire permanent replacements to perform the employees' jobs.

On April 28, 1991, Company Supervisor Judy Lamphere called employee

Susan Cox to tell her that the Union had decided to call a strike.

Lamphere also told Cox that "they" would be working and would give Cox a

ride to work, but that she had to resign from the Union in order to return

to work during a strike. Cox informed Lamphere that she had decided to

join the strike, and repeated Lamphere's remarks to at least six other

employees. There is no record evidence as to whether said conversations

were prior to or subsequent to the start of the strike.

On April 29, 1991, sixty-seven of the eighty-two unit employees

commenced a work stoppage against the Company. That same day, Terry Sanke

drafted another letter to the bargaining unit employees, advising them that

they had three options during a strike: (1) to refuse to cross the picket

line; (2) to cross the picket line; or (3) to resign from the Union and

return to work. The letter stated that employees who wanted to cross the

picket line and avoid being fined by the Union should resign from the Union

first. Sanke included with the letter a sample resignation form with

instructions for completing and returning it to the Union.

On May 11, 1991, striking employee Linda Smith called Supervisor

Carol Tribble and expressed an interest in returning to
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work. Tribble told Smith that in order to return to work she first had to

sign a Union resignation form and place it in the mail. In addition,

Tribble stated that Smith's anniversary date would be pushed back for every

week she was out on the picket line.

Smith subsequently related her discussion with Tribble to fellow

striking employee Cindy Kruse. Kruse called Tribble, who stated that in

order to return to work Kruse first had to sign a Union resignation form

and place it in the mail. Tribble later told Kruse that her anniversary

date would be set back a week for every week she stayed out on strike.

Kruse decided not to return to work at that time.

The striking employees picketed the Company's plant on most if not

all days during the strike. Picket signs went up shortly after the

strike's inception. Notably, at no time during the duration of the strike

did the picket signs change in response to actions taken by Company agents;

rather, at all times the picket signs alluded solely to economic reasons

for the strike. The picket signs never indicated that the strike was

intended to be an unfair labor practice strike. 

During June, July, and August of 1991, there was much shouting of

invectives and insults between the strikers, the replacement employees, and

the Company's supervisors. In particular, on several occasions the

Company's credit manager, Sandy Sanke, shouted: that the strikers did not

have jobs there anymore; that they were fired; that the strikers should go

find a job and get a life; and that a particular employee was a "jobless

wonder."

On or about August 2, 1991, Company officials learned that the Union

was alleging that Company representatives had made unlawful threats and

other comments as early as the day before the strike began. Terry Sanke

investigated the matter by speaking with the Company representatives named

by the Union. The Company
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representatives all denied making illegal comments. In a letter sent to

each of the striking employees dated August 8, 1991, Terry Sanke stated

that the Company's management had not made or implied any statements that

strikers no longer had jobs with the Company, and that any information they

had to the contrary was inaccurate and should be disregarded. Sanke

further explained their rights as economic strikers. However, the ALJ

found that Sandy Sanke continued, at least throughout the month of August,

to tell strikers: that they did not have jobs; to go home; that they were

fired; and that a particular striker was a jobless wonder.

On August 27, 1991, the Union filed an unfair labor practice ("ULP")

charge with the NLRB, repeating its earlier allegations. On October 8,

1991 and January 9, 1992, respectively, the Union filed a first and second

amended ULP charge with the NLRB. Following an investigation, the Regional

Director of Region 18 of the NLRB issued an amended complaint on January

21, 1992. The amended complaint alleged that the Company violated section

8(a)(1) of the National Labor Relations Act ("the Act") by informing an

employee that she was required to resign her union membership before

returning to work if she engaged in a strike; by warning employees that

their anniversary dates would be set back one week for every week they

remained on a picket line; and by telling employees that, because they

engaged in a strike, they were no longer employed by the Company. The

amended complaint further alleged that the Company violated sections

8(a)(1) and (3) of the Act by refusing to reinstate employees, following

unconditional requests to return to work, unless they resigned their union

memberships; and, as the employees' economic strike was allegedly converted

to a ULP strike by the aforementioned conduct, by refusing to reinstate

striking employees to their former positions following unconditional offers

to return to work.

The employees' strike continued through September 1991, by the end

of which month the Company had hired and employed approximately
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28 permanent replacement employees and 20 bargaining unit employees who had

either not joined the strike at its inception or who had since abandoned

the strike. On September 30, 1991, the Company sent Smith and Kruse a

letter offering them immediate and unconditional reinstatement. The letter

expressly stated that they did not have to resign their union memberships

before returning to work. The Company sent Smith and Kruse another letter

on October 7, 1991, clarifying that in addition to being reinstated, they

would be paid all back pay to which they were entitled under the Act.

On October 4, 1991, the Company mailed to every striking employee and

posted on its plant bulletin boards a letter, signed by Terry Sanke,

advising employees that resignation of union membership had never been a

condition for returning to work for the Company and that no striking

employee had been, or ever would be, discharged because they chose to

participate in the strike. The Company sent another letter to all

employees dated October 8, 1991, in which it disavowed any threat to set

back anniversary dates as well as any statements that strikers were fired

or had to resign from the Union in order to return to work; the Company

also acknowledged that if such statements were made, they were unlawful.

On October 11, 1991, the Union unconditionally offered to return its

members to work. Twenty-one former strikers whose names appeared on a

seniority list received reinstatement letters; eleven of these striking

employees subsequently accepted reinstatement.

A trial was held before the ALJ on February 25 and 26, 1992. The ALJ

found that the Company had indeed violated section 8(a)(1) and sections

8(a)(3) and (1), as alleged in the amended complaint. In particular, the

ALJ found that: (1) Tribble's statement that the strikers' anniversary date

would be pushed back and Sandy Sanke's remarks to strikers throughout the

strike violated Section 8(a)(1) of the Act; and (2) the Company's refusal

to reinstate Smith and Kruse unless they first resigned from the Union

violated Sections
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8(a)(3) and (1) of the Act. However, the ALJ rejected the contention that

these ULP's prolonged the strike and thus converted it into an unfair labor

practice strike.

Upon review before a three-member panel of the NLRB ("the Board"),

the Union took exception to the ALJ's finding that the strike was not

converted into an unfair labor practice strike on May 12, 1991. The Union

further took exception to the ALJ's finding that there was no subjective

evidence that the ULP's committed by the Company motivated strikers to

prolong their work stoppage. In addition, the Company filed an exception

to the ALJ's failure to find that, even if the strike was converted into

an unfair labor practice strike, it was reconverted into an economic strike

prior to the Union's unconditional offer to return to work.

On September 30, 1994, the Board rendered a decision and order

reversing the ALJ's decision. F.L Thorpe & Co., Inc., 315 NLRB No. 22.

Relying upon both objective and subjective analyses, the Board held that

the Union's economic strike converted into an unfair labor practice strike

on or about May 12, 1991. The Board further held that the Company never

successfully reconverted the strike into an economic strike. The Company

presently challenges each of the Board's conclusions.

II. STANDARD OF REVIEW

NLRB unfair labor practice actions are formal adjudications, which

are governed by the Administrative Procedures Act. Additionally, 29 U.S.C.

§ 160(b) (1988) provides that NLRB unfair labor practice actions "shall,

so far as practicable, be conducted in accordance with the rules of

evidence applicable in the district courts of the United States under the

rules of civil procedure applicable for the district courts of the United

States." As a result, the agency's opinion must contain "findings and

conclusions, and the reasons or basis therefore, on all the
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material issues of fact, law, or discretion presented on the record." 5

U.S.C. § 557(c) (1994). 

When a court reviews the NLRB's opinion, it must "hold unlawful and

set aside agency action, findings, and conclusions found to by . . .

unsupported by substantial evidence." 5 U.S.C. § 706(2)(E) (1994); see

also 29 U.S.C. § 160(e) (the court must determine whether the Board

correctly applied the law and whether its findings of fact are supported

by substantial evidence on the record considered as a whole); Universal

Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); NLRB v. American Linen

Supply Co., 945 F.2d 1428, 1431 (8th Cir. 1991). Substantial evidence is

more than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.

Universal Camera, 340 U.S. at 477 (citation omitted).

III. DISCUSSION

The parties do not dispute that the strike began as an economic

strike; nor do the parties dispute the ALJ's findings that the Company

committed the ULP's alleged in the amended complaint in this case. The

first issue to be addressed, therefore, is whether the Board erred in

concluding that the ULP's committed by Company agents converted the Union's

economic strike into an unfair labor practice strike.

The commission of ULP's by an employer during a strike that began as

an economically motivated strike does not automatically convert that strike

into an unfair labor practice strike. Gaywood Mfg. Co., 299 NLRB 697, 700

(1990); C-Line Express, 292 NLRB 638, 638 (1989). Rather, the NLRB

"General Counsel must establish that the unlawful conduct was a factor (not

necessarily the sole or predominant one) that caused a prolongation of the

work stoppage." C-Line, 292 NLRB at 638; see also Gaywood, 299 NLRB at

700. In other words, there must be a causal connection shown between the
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employer's unlawful conduct and a prolongation of the strike. See, e.g.,

Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1079-80 (1st Cir.

1981). 

Both subjective and objective factors may be probative of conversion.

Id. at 1080. Applying a subjective analysis, the Board and reviewing court

may give substantial weight to the strikers' own characterization of their

motive for continuing to strike after the unfair labor practice. Applying

an objective analysis, the Board and reviewing court may consider the

probable impact of the ULP in question on reasonable strikers in the

relevant context. Id. Although the record will often permit an evaluation

of whether the strikers' knowledge of, and subjective reactions to, an

employer's unlawful conduct led to a prolongation of the work stoppage, the

presence or absence of evidence of such subjective motivations is not

always the sine qua non for determining whether a conversion has occurred.

C-Line, 292 NLRB at 638. Rather, certain types of unfair labor practices

by their very nature will have a reasonable tendency to prolong a strike.

Id.; see, e.g., Vulcan Hart Corp. v. NLRB, 718 F.2d 269, 276 (8th Cir.

1983) (employer's withdrawal of union recognition clearly prolonged strike

because it put an end to contract negotiations).

In considering the strikers' subjective motivations in this case, the

ALJ determined that

the single most compelling aspect of the entire record is that

each of the former striking employees, who testified on behalf

of the General Counsel, stated that, notwithstanding the

aforementioned unfair labor practices committed while the

strike continued, the discussions at their union meetings, with

regard to continuing the strike, centered on the need for a

collective-bargaining agreement and on the desire to be treated

fairly in any agreement. Other than Theresa Otto, not one

witness mentioned the unfair labor practices as even being a

factor in the decisionmaking process . . . .
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F.L. Thorpe, 315 NLRB No. 22, at 13. In reversing the ALJ, however, the

Board concluded that the record contains "ample evidence that the strikers'

subjective motivations for continuing the strike in fact did change as a

result of the unfair labor practices." Id. at 4. Significantly, in

reaching this conclusion, the Board inferred a change in the strikers'

subjective motivations based upon its conclusion that the ULP's "caused

consternation among the employees so as to prolong the strike." Id.

In Chicago Beef Co., 298 NLRB 1039 (1990), enforced, 944 F.2d 905

(6th Cir. 1991), the NLRB held that an economic strike had been converted

into an unfair labor practice strike as a result of the employer's unlawful

conduct; in support of its decision, the NLRB relied upon subjective

evidence (i.e. strikers' testimony) that the employer's unlawful conduct

"caused consternation among the striking employees." Id. at 1040. The

NLRB found further support for its subjective analysis in an analysis of

the objective evidence on the record. See id.

In this case, the Board states that "where, as here, the unfair labor

practices are of a type which the Board has found objectively tend to

prolong a strike, the Board has inferred a change in strikers' subjective

motivations where there is evidence that the unfair labor practices `caused

consternation among the striking employees.'" F.L. Thorpe, 315 NLRB No.

22, at 4 (emphasis added) (citing Chicago Beef, 298 NLRB at 1040). We hold

that the Board committed legal error in analyzing the strikers' subjective

motivations by ignoring entirely the strikers' testimony which clearly

establishes that the work stoppage in this case remained economically

motivated throughout the length of the strike, and instead using objective

criteria to infer conversion to a ULP strike under the "caused

consternation" test.

Furthermore, we find the Board's holding that the strike converted

to an unfair labor practice strike to be unsupported by
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substantial evidence on the record. As the ALJ aptly noted, the most

compelling aspect of the record in this case is the testimony of striking

employees who indicated that, notwithstanding the ULP's committed by

Company agents, the discussions at union meetings centered upon the need

for a collective bargaining agreement and the desire to be treated fairly

in any agreement. For example, during Linda Smith's cross-examination

before the ALJ, Smith testified as follows:

Q: The reason that you were told at the union meeting

you were going out on strike in April [of 1991] was to get a

better contract, is that not correct?

. . . .

A: The union didn't tell us to do this. We voted it

in, all of us girls voted it in, it was our choice to do.

Q: And your vote was you want to go on strike to get a

better contract?

A: Yes, sir.

Q: And that's the reason you voted, is that correct?

A: Yes, sir.

. . . .

Q: And every time the subject came up [at union

meetings] the reason that you voted to continue the strike was

to get a better contract, is that not correct?

A: That's right.

Q: And that is the reason you are currently out on

strike, is that not correct?

A: Yes, it is.

. . . .

Q: Is that the stated reason you people are out on

strike, to get a better contract?

A: To get a contract with Thorpe, yes.
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Q: And that's the only reason, is that not correct?

A: Yes, it is.

. . . .

JUDGE LITVACK: And the reason for the continuation, as

Mr. Berens asked you, the discussion for continuing the strike

centered on the fact that you people wanted to get a better

contract?

A: To get a contract, yes.

Trial Transcript at 95-97 ("Tr. at 95-97"). Cindy Kruse similarly

testified on cross-examination that the strikers' discussions about

continuing the strike always centered around obtaining a more favorable

contract. Tr. at 139-44. For example, Kruse testified as follows:

Q: Is the reason that you have been told by the Union

that you're striking is to get a better contract?

. . . .

A: It's what we want.

. . . .

Q: Now as to discussions beginning the strike, it was

all centered around getting a contract, wasn't it?

A: Yes.

. . . .

Q: Okay. Now have you had discussions since then about

continuing the strike?

A: Yes.

Q: And all of those discussions have always centered

around getting a contract, haven't they?

A: A contract, and for them to start negotiating.

Q: Yes. So the Company would negotiate better with you

and you would get a contract, is that right?
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A: Hopefully.

. . . .

Q: That's the reason that's been discussed and why you

continue to strike?

A: Yes.

Q: And there's been no other reasons discussed as to

why you've gone on strike, has there?

A: No.

. . . .

JUDGE LITVACK: I take it since the strike began

employees at union meetings have discussed whether they ought

to continue the strike?

A: Yes.

JUDGE LITVACK: All right. The reasons that the

employees have discussed, do they all have to do with contract

reasons, getting better health, better safety conditions, have

they all centered on those type[s] of issues?

A: Yes.

JUDGE LITVACK: Have they involved anything else?

A: No.

Tr. at 140, 142-44. Employees Roxanne Boyer, Susan Cox, Deborah Young, and

Kathy Bergstrom also testified on cross-examination that the sole reason

discussed among strikers for continuing the strike was to obtain a better

contract. See Tr. at 172-73, 196-97, 211-14, 218-19, 281-84. Lastly, with

regard to the testimony of Theresa Otto concerning the strikers' subjective

motivations, Otto's testimony may be characterized as ambiguous, at best.

When asked by Judge Litvack whether Sandy Sanke's comments were ever

discussed among strikers as a reason for continuing the work stoppage, Otto

replied that Sanke's comments "made us angry and more determined to get a

fair contract." Tr. at 236-37. In an
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effort to pin down Otto's testimony concerning the issue of conversion,

Judge Litvack initiated the following exchange:

JUDGE LITVAK: [I]t's alleged that this was no longer an

economic strike, a strike to get a contract, but it turned into

an unfair labor practice strike, protesting the activity of the

-- the Employer's activities during the strike. Now I'm asking

you, did you ever hear any of that expressed as a motivating

factor for continuing the strike? That now we're protesting

all the things that the company did during the strike.

A: Yeah.

JUDGE LITVACK: All right. Now tell me what you heard.

A: Basically --

JUDGE LITVACK: Not basically. I want to know comments

that you heard.

Tr. at 239. Otto's subsequent testimony, however, fails to establish that

the strikers' subjective motivations had changed; rather, Otto's testimony

appears to indicate that the strike continued to be motivated by the

strikers' desire to obtain a contract with fair terms and benefits. See

Tr. at 239-40. In short, Otto failed to substantiate her affirmative

response to the question posed by Judge Litvack.

Moreover, the strikers' testimony is corroborated by additional

evidence of subjective intent on the record. As noted, at all times the

picket signs solely addressed economic reasons for the strike; at no time

did the picket signs change in response to ULP's committed by Company

agents. This evidence further belies the Board's conclusion in this case.

Based upon our detailed review of the record in this case, we find

the Board's subjective analysis to be unsupported by substantial evidence

and otherwise contrary to law. We further
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find that the record is capable of supporting only one conclusion with

regard to the strikers' subjective motivations; namely, that at no time

subsequent to the strike's inception did the strikers' subjective

motivations for continuing to strike change in response to ULP's committed

by Company agents.

With regard to an objective analysis, the ALJ noted that the NLRB has

held that an employer's "`unlawful conditioning of reinstatement on

resignation from the [u]nion is comparable in effect to conduct such as

unlawful withdrawal of recognition during an economic strike -- an unfair

labor practice that, by its nature, has a reasonable tendency to prolong

the strike.'" F.L. Thorpe, 315 NLRB No. 22, at 13 (citing Gaywood, 299

NLRB at 700). The ALJ, however, rejected the General Counsel's argument

that, in light of Gaywood,

notwithstanding the subjective evidence [on the record],

including the former striking employees' own belief that the

objective of the strike . . . , even in the face of unfair

labor practices, remained economic, the mere existence of

evidence, establishing the resignation from union membership

condition for returning to work, satisfies the General

Counsel's burden of proof that [Thorpe's] misconduct prolonged

the strike, thereby converting it to an unfair labor practice

strike.

F.L. Thorpe, 315 NLRB No. 22, at 14. In so doing, the ALJ noted that in

Gaywood the NLRB specifically relied upon crucial evidence of sufficient

dissemination of the employer's unlawful condition among the striking

employees. Indeed, the ALJ correctly observed that, notwithstanding the

broad language adopted in Gaywood, "the subjective fact of dissemination

remains necessary to establish that the effect of the [conditioning of

reinstatement on resignation from the union] was not isolated." Id. The

ALJ found that because the evidence showed that only two of the sixty-seven

striking employees (i.e. Smith and Kruse) were aware of the unlawful

conditioning of reinstatement on resignation from the
 Judge Litvack noted that although Susan Cox received an

2

identical condition from Supervisor Lamphere, such occurred prior

to the start of the strike, and evidence that such was disseminated

was never placed in any particular time frame. In addition, the

General Counsel conceded that the strike was economically motivated

at the outset. Judge Litvack further noted that the record is

bereft of evidence that Tribble's threat to Smith and Kruse

regarding the setting back of employees' anniversary dates for each

week of the strike was ever disseminated to any other employee.

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union, evidence of sufficient dissemination was lacking. The ALJ

2

therefore found that deference should be accorded the abundant testimony

offered by the strikers regarding the economic rationale for their strike.

Accordingly, the ALJ rejected the General Counsel's contention that the

mere fact that Thorpe unlawfully conditioned reinstatement upon resignation

from the Union is sufficient, in and of itself, to have converted the

employees' economic strike into an unfair labor practice strike.

The Board disagreed with the ALJ's finding that the Company's

unlawful conditioning of reinstatement was not sufficiently disseminated.

The Board relied in significant part upon the dissemination of Lamphere's

statement to Susan Cox. Notably, however, no evidence was introduced of

the time frame within which such dissemination occurred.

Upon review, we agree with the ALJ's decision which recognizes that

evidence of sufficient dissemination is necessary in order to establish

that the effect of the unlawful conditioning of reinstatement was not

isolated. Given that Lamphere's statement was made prior to the inception

of the strike, coupled with the fact that, as the General Counsel conceded,

the strike began as an economic strike, the record in this case fails to

establish sufficient dissemination of the unlawful conditioning of

reinstatement following the inception of the work stoppage. Rather, as the

ALJ found, the record clearly indicates only that two of the sixty-seven

strikers were aware of the unlawful
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condition for returning. Accordingly, we find the Board's holding to the

contrary to be unsupported by substantial evidence on the record.

Finally, with regard to Sandy Sanke's comments to picketers during

June, July and August of 1991, the ALJ found that although the record

contained evidence of wide dissemination of these comments among the

striking employees, there was no record evidence that such had any impact

on the underlying rationale for the strike, which always remained focused

upon obtaining a more favorable collective-bargaining agreement. F.L.

Thorpe, 315 NLRB No. 22, at 14.

The Board, however, held that in light of Sandy Sanke's high position

in the Company's managerial hierarchy, her statements concerning

termination reasonably tended to prolong the strike and therefore afforded

a sufficient and independent basis for finding a conversion. Id. at 3.

We disagree. Although one might infer that comments such as those made by

someone of Sanke's stature within the Company might objectively tend to

prolong a strike, such comments do not provide an independent basis for

finding a conversion in this case in light of the overwhelming subjective

evidence to the contrary offered by the strikers themselves that is

corroborated by additional record evidence of subjective intent. In short,

the Board erred by substituting its own judgment concerning the alleged

conversion in place of ample credible record evidence provided and

corroborated by numerous strikers in testimony before the ALJ which belies

entirely any finding of such a conversion. Indeed, the strikers' testimony

is particularly compelling in this case because it clearly is not the

"self-serving rhetoric of sophisticated union officials and members

inconsistent with the true factual context." C-Line, 292 NLRB at 638

(citing Soule Glass, 652 F.2d at 1080). Accordingly, we find the Board's

determination that its objective analysis afforded a sufficient and
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independent basis for finding a conversion to be unsupported by substantial

evidence on the record.

IV. CONCLUSION

For the foregoing reasons we hold that the Board's determination is

unsupported by substantial record evidence and, with regard to its

subjective analysis in this case, otherwise not in accordance with law.

We reverse the decision of the Board holding that the ULP's committed by

Company agents converted the Union's strike from an economic strike into

an unfair labor practice strike. Rather, as the ALJ originally found, we

find that the record fails to support a finding of conversion in this case.

Because we find that no conversion occurred, we need not address the issue

of reconversion. We enforce the Board's order in part and deny enforcement

in part, in accordance with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.