___________ 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, Unite d

States Court of International Trade, sitting b y designation. The Honorable Burton Litvack, Administrative Law Judge. 1 

### -2- Before MAGILL and HANSEN, Circuit Judges, and GOLDBERG, Judge. *

___________ GOLDBERG, Judge.

F.L. Thorpe & Co., Inc. ("Thorpe" or "the Company") petitions fo r reviewof an order of the National Labor Relations Board ("NLRB") whic h concluded that unfair labor practices committed by Company agents converte d
an economic strike by the United Steelworkers of America ("the Union") int o anunfair labor practice strike. Thorpe also seeks review of the NLRB's conclu sion 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 cross

application. 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 i n conclu ding that the unfair labor practices committed by Company agent s converted the Union's economic strike into an unfair labor practice strike , we reverse.

I. BACKGROUND

Fo llowing a hearing of this matter, the Administrative Law Judge 1 (" ALJ") made the following findings of fact which the NLRB pane l subsequentlyadopted. 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 o f collective bargaining. The

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parties met 14 times over the ensuing nine months in an unsuccessful effor t to negotiate a first contract.

On April 27, 1991, after learning that a strike was possible, th e Comp any's general manager, Terry Sanke, drafted a letter to all uni t employees advising them that they had a right to withhold their services in connection with a strike, or to cross the pic ket line. The letter also stated that the Company would continue to operate and that it had the righ t 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 th e Union in order to return to work during a strike. Cox informed Lamphere that she had decided t o join the strike, and repeated Lamphere's remarks to at least six othe r employees. There is no record evidence as to whether said conversations were prior to or subsequent to the start of the strike.

OnApril 29, 1991, sixty-seven of the eighty-two unit employee s commenced a work stoppage against the Company. That same day, Terry Sanke drafted another letter to the bargaining unit employees, advising them tha t 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 an d 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 Unio n first. Sa nke included with the letter a sample resignation form wit h instructions for completing and returning it to the Union.

OnMay 11, 1991, striking employee Linda Smith called Superviso r Carol Tribble and expressed an interest in returning to

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work. Tribble told Smith that in order to retur n to work she first had to sign a Un ion resignation form and place it in the mail. In addition , Tribble stated that Smith's anniversary date would be pushed back for ever y week she was out on the picket line.
Smithsubsequently related her discussion with Tribble to fello w 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 stri king employees picketed the Company's plant on most if no t all days during the strike. Picket signs went up shortly after th e 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 wa s intended to be an unfair labor practice strike. During June, July, and August of 1991, there was much shouting o f invectives and insults between the strikers, the replacement employees, an d the Co mpany's supervisors. In particular, on several occasions th e Company's credit mana ger, Sandy Sanke, shouted: that the strikers did not have jobs there anymore; that they were fired; t hat 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 al leging that Company representatives had made unlawful threats an d other comments as early as the day before the strike began. Terry Sanke investigated the matter by speaking with the Com pany representatives named by the Union. The Company

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representatives all denied making illegal comments. In a letter sent to eachof the striking employees dated August 8, 1991, Terry Sanke state d that the Company's ma nagement had not made or implied any statements that strikers no longer had jobs with the Company, and that any information the y had to the contrary was inaccurate and should be disregarded. Sank e further explained their rights as economic strikers. However, the AL J found that Sandy Sanke continued, at least throu ghout the month of August, to tell strikers: tha t 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 Unio n filed a first and second amended ULP charge with the NLRB. Following an investigation, the Regiona l Director of Region 18 of the NLRB issued an amended complaint on January 21, 1992. The amended complaint alleged that th e Company violated section 8(a)(1) of the National Labor Relations Act ("the Act") by informing a n empl oyee that she was required to resign her union membership befor e returning to work if she engaged in a strike; by warning employees tha t their anniversary dates would be set back one week for every week the y remai ned on a picket line; and by telling employees that, because the y engaged in a strike, they were no longer employed by the Company. Th e am ended complaint further alleged that the Company violated section s 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 converte d to a ULP strike by the aforementioned conduct, by refusing to reinstat e striking employees to their former positions following unconditional offer s to return to work.

The employees' strike continued through September 1991, by the en d of which month the Company had hired and employed approximately

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28 permanent replacement employees and 20 bargaining unit employees who ha d either not joined the strike at its inception or who had since abandoned the stri ke. On September 30, 1991, the Company sent Smith and Kruse a letter offering them immediate and unconditional reinstatement. The lette r expressly stated that they did not have to resign their union memberships before returning to work. The Company sent Smit h and Kruse another letter on October 7, 1991, c larifying 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 employ ee and post ed on its plant bulletin boards a letter, signed by Terry Sanke , advising employees that resignation of union membership had never been a cond itionfor returning to work for the Company and that no strikin g employee h ad been, or ever would be, discharged because they chose t o par ticipate in the strike. The Company sent another letter to al l employees dated October 8, 1991, in which it disavowed any threat to set back anniversary date s as well as any statements that strikers were fired
or ha d to resign from the Union in order to return to work; the Compan y also acknowledged that if such statements were made, they were unlawful. On O ctober 11, 1991, the Union unconditionally offered to return it s membe rs to work. Twenty-one former strikers whose names appeared on a seniority list received reinstatement letters; eleven of these strikin g employees subsequently accepted reinstatement. A trial was held before the ALJ on February 25 and 26, 1992. T he ALJ fou nd that the Company had indeed violated section 8(a)(1) and section s 8(a)(3) and (1), as a lleged in the amended complaint. In particular, the ALJ found that: (1) Tribble's statement that the strikers' anniversary dat e would be pushed back and Sandy Sanke's remarks to strikers throughout the strike violated Secti on 8(a)(1) of the Act; and (2) the Company's refusal to re instate Smith and Kruse unless they first resigned from the Unio n violated Sections

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8(a)(3) and (1) of the Act. However, the ALJ re jected the contention that these ULP's prolonged the strike and thus converted it into an unfair labo r practice strike.
Upon rev iew before a three-member panel of the NLRB ("the Board") , the Union took exception to the ALJ's finding that the strike was no t converted into an unfair labor practice strike o n 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 t o prolong their work st oppage. 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 strik e prior to the Union's unconditional offer to return to work.

On Sep tember 30, 1994, the Board rendered a decision and orde r reversi ng 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 un fair labor practice strike onor about May 12, 1991. The Board further held that the Company never successfully reconver ted the strike into an economic strike. The Company presently challenges each of the Board's conclusions.

II. STANDARD OF REVIEW

NL RB unfair labor practice actions are formal adjudications, whic h 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 o f evidence applicable i n the district courts of the United States under the rules of civil proced ure applicable for the district courts of the United State s." As a result, the agency's opinion must contain "findings an d 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 co urt reviews the NLRB's opinion, it must "hold unlawful and set as ide agency action, findings, and conclusions found to by . .
. uns upported by substantial evidence." 5 U.S.C. § 706(2)(E) (1994); se e also 29 U .S.C. § 160(e) (the court must determine whether the Boar d correctlyapplied the law and whether its findings of fact are supported by substantial evidence on the record considered as a whole); Universa l Camera Corp. v. NLRB , 340 U.S. 474, 488 (1951); NLRB v. American Line n Supply Co. , 945 F.2d 1428, 1431 (8th Cir. 1991). Substantial evidence is
mor e than a mere scintilla. It means such relevant evidence as a reason able 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 economi c strik e; nor do the parties dispute the ALJ's findings that the Compan y committed the ULP's alleged in the amended complaint in this case. Th e first issu e to be addressed, therefore, is whether the Board erred i n 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 employ er during a strike that began as
an economically motivated strike does not automatically convert that strik e into an unfair labor practice strike. Gaywood M fg. Co. , 299 NLRB 697, 700 (1990); C -Line Express , 292 NLRB 638, 638 (1989). Rather, the NLR B "General Counsel must establish that the unlawful conduct was a factor (no t necessarily the sole or predominant one) that ca used a prolongation of the work st oppage." C-Line , 292 NLRB at 638; see also Gaywood , 299 NLRB a t 700. In other words, there must be a causal connection shown between the

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employer's unlawful c onduct and a prolongation of the strike. See, e.g. , Sou le Glass and Glazing Co. v. NLRB , 652 F.2d 1055, 1079-80 (1st Cir
. 1981). Both subjective and objective factors may be probative of conve rsion. Id. at 1080. Applying a subjective analysis, the Board and reviewing cour t may give substantial weight to the strikers' owncharacterization of their motive for continuing to strike after the unfair labor practice. Applying
an obje ctive analysis, the Board and reviewing court may consider th e prob able impact of the ULP in question on reasonable strikers in th e relevant context. Id. Although the record will often permit an evaluatio n of whether the strikers' knowledge of, and subjective reactions to, a n employer's unlawful conduct led to a prolongation of the work stoppage, th e presenc e or absence of evidence of such subjective motivations is no t always the sine qua non for determining whether a conversion has occurred. C-Line , 292 NLRB at 6 38. 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 recognitio n clearly prolonged strike because it put an end to contract negotiations). In considering the strikers' subjective motivations in this cas e, the ALJ determined that the single most compelli ng aspect of the entire record is that each of the former strik ing employees, who testified on behalf of th e General Counsel, stated that, notwithstanding th e afo rementioned unfair labor practices committed while th e strike continued, the discussions at their union me etings, with regard to continuing the strike, centered on the need for a collective-bargaining agreement and on the desire t o be treated fair lyin any agreement. Other than Theresa Otto, not on e wit ness 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, i n reaching this conclusion, the Board inferred a change in the strikers ' subjec tive motivations based upon its conclusion that the ULP's "cause d consternation among the employees so as to prolong the strike." Id.

In Chicago Beef Co. , 298 NLRB 1039 (1990), enforced , 944 F.2d 90 5 (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 unlawfu l cond uct; in support of its decision, the NLRB relied upon subjectiv e evidence (i.e. strikers' testimony) that the employer's unlawful conduct "caused consternation among the striking employees." Id. at 1040. Th e 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 pra ctices are of a type which the Board has found objectivelytend t o prolong a strike, the Board has inferred a change in strikers' subjective motivations where there is evidence that the unfair labor practices `cause d consternationamong the striking employees.'" F.L. Thorpe , 315 NLRB No. 22, at 4 (emphasis added) (citing Chicago Beef , 298 NLRB at 1040). We hol d that the Board committed legal error in analyzin g the strikers' subjective moti vations by ignoring entirely the strikers' testimony which clearl y establ ishes that the work stoppage in this case remained economicall y motivated throughout the length of the strike, a nd instead using objective criter ia to infer conversion to a ULP strike under the "cause d consternation" test.
Furthermore, we find the Board's holding that the strike converte d to an unfair labor practice strike to be unsupported by

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sub stantial evidence on the record. As the ALJ aptly noted, the mos t compelling aspect of the record in this case is the testimony of striking em ployees who indicated that, notwithstanding the ULP's committed b y Companyagents, the discussions at union meetings centered upon the need for a collective barg aining agreement and the desire to be treated fairly in any agreement. For example, during Linda Smith's cross-examinatio n 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 u nion didn't tell us to do this. We voted i t 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: An d every time the subject came up [at unio n meetings] the reason tha t 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 o n strike, is that not correct?
A: Yes, it is.

. . . . Q: Is that the stated reason you people are out o n strike, to get a better contract?
A: To get a contract with Thorpe, yes.

### -12- Q: And that's the only reason, is that not correct?
A: Yes, it is.

. . . . JUDGE LITVACK: And the reason for the continuation, a s Mr. Berens asked you, th e discussion for continuing the strike ce ntered on the fact that you people wanted to get a bette r contract? A: To get a contract, yes. Trial Tr anscript at 95-97 (" Tr. at 95-97 "). Cindy Kruse similarl y testified on cross-examination that the strikers' discussions abou t contin uing the strike always centered around obtaining a more favorabl e 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 abou t continuing the strike?
A: Yes. Q: And al l of those discussions have always centere d 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 yo u and you would get a contract, is that right?

### -13- A: Hopefully.

. . . . Q: That's the reason that's be en discussed and why you continue to strike?
A: Yes. Q: And there's been no other reasons discussed as t o why you've gone on strike, has there?
A: No.

. . . . JUDGE LITVACK: I take it since the strike bega n employees at union meetings have discussed whether they ought to continue the strike?
A: Yes. JUDGE LITVACK: All right. The reasons that th e 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, an d KathyBergstrom also testified on cross-examination that the sole reason discussed among strik ers for continuing the strike was to obtain a better contract. See Tr. at 172-73, 196-97, 211-14, 218-19, 281-84 . Lastly, wit h regard to the testimony of Theresa Otto concerning the strikers' subjectiv e motivations, Otto's t estimony may be characterized as ambiguous, at best. When asked by Judge Litvack whether Sandy Sanke's comments were eve r discussed among strikers as a reason for continuing the work stoppage, Ott o 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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eff ort 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 act ivity of the -- the Employer's activities during the strike. No w I'm asking you, did you ever hear any of that expressed as a motivatin g fac tor for continuing the strike? That now we're protestin g 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 comment s that you heard.
Tr. at 239 . Otto's subsequent testimony, howeve r, fails to establish that the strikers' subjective motivations had changed ; rather, Otto's testimony appe ars to indicate that the strike continued to be motivated by th e strikers' desire to obtain a contract with fair terms and benefits. See Tr. at 239 -40 . In short, Otto failed to substantiate her affirmativ e response to the question posed by Judge Litvack.
Moreover, the strikers' testimony is corroborated by additiona l evidence of subjective intent on the record. As noted, at all times the picket signs solely a ddressed economic reasons for the strike; at no time did the pi cket signs change in response to ULP's committed by Compan y agents. This evidence further belies the Board' s conclusion in this case.

Based upon our detailed review of the record in this case, we fin d the Board's subjectiv e 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 wit h reg ard to the strikers' subjective motivations; namely, that at no tim e sub sequent to the strike's inception did the strikers' subjectiv e motivations for continuing to strike change in r esponse to ULP's committed by Company agents. With regard to an objective analysis, the ALJ noted that the NL RB has held that an employer's "`unlawful conditioning of reinstatement o n resignationfrom the [u]nion is comparable in effect to conduct such a s unlawful withdrawal o f recognition during an economic strike -- an unfair labor practice that, by its nature, has a reasonable tendency to prolong the str ike.'" F.L. Thorpe , 315 NLRB No. 22, at 13 (citing Gaywood , 29 9 NLRB at 700). The ALJ, however, rejected the General Counsel's argument that, in light of Gaywood , notwithstanding the subjective evidence [on the record] , includ ing the former striking employees' own belief that th e object ive of the strike . . . , even in the face of unfai r labor practices, remained economic, the mere existence o f evidence, establishing the resignation from union membershi p con dition for returning to work, satisfies the Genera l Counsel's burden of proo f 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 dissemi nationof the employer's unlawful condition among the strikin g 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 o f reinstatement on resi gnation from the union] was not isolated." Id. The ALJ found that because the evidence showed that only two of the sixty-seve n stri king employees (i.e. Smith and Kruse) were aware of the unlawfu l conditioning of reinstatement on resignation from the

### Jud ge Litvack noted that although Susan Cox received a n 2 

### identical condition from Supervisor Lamphere, such occurred prior to the start of the strike, and evidence that such was disse minated was neve r placed in any particular time frame. In addition, th e General Counsel conceded that the strike was economically mo tivated at the outset. Judge Litvack further noted that the record i s bereft of evidence that Tribble's threat to Smith and Krus e regarding the setting back of employees' anniversary dates f or each week of the strike was ever disseminated to any other employee. -16- un ion, evidence of sufficient dissemination was lacking. The AL J 2 therefore found that deference should be accorded the abundant testimony offered by the strikers regarding the economic r ationale for their strike. Accord ingly, the ALJ rejected the General Counsel's contention that th e mere fact that Thorpe unlawfully conditioned reinstatement upon resignatio n fro mthe Union is sufficient, in and of itself, to have converted th e employees' economic strike into an unfair labor practice strike.

The Board disagreed with the ALJ's finding that the Company' s unlawful conditioningof reinstatement was not sufficiently disseminated. The Board relied in s ignificant 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 revi ew, we agree with the ALJ's decision which recognizes that eviden ce of sufficient dissemination is necessary in order to establis h that th e effect of the unlawful conditioning of reinstatement was no t 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 establishsufficient dissemination of the unlawful conditioning o f reinstatement following the inception of the work stoppage. Rather, as th e 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 returni ng. 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 durin g Jun e, July and August of 1991, the ALJ found that although the recor d contai ned evidence of wide dissemination of these comments among th e striking employees, t here was no record evidence that such had any impact on the underlying rat ionale 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 po sition in th e Company's managerial hierarchy, her statements concernin g termination reasonably tended to prolong the str ike and therefore afforded
a suffici ent and independent basis for finding a conversion. Id. at 3
. We disagree. Although one might infer that comm ents such as those made by som eone of Sanke's stature within the Company might objectively tend t o prolong a strike, such comments do not provide an independent basis fo r finding a conversion in this case in light of the overwhelming subjective evidence to the contrary offered by the strikers themselves that i s corroborated by additional record evidence of subjective intent. In short , the Board erred by substituting its own judgment concerning the allege d conver sion in place of ample credible record evidence provided an d corroborated by numerous strikers in testimony b efore the ALJ which belies entirely any finding of such a conversion. Indeed, the strikers' testimony is particu larly compelling in this case because it clearly is not th e "self-serving rhetoric of sophisticated union officials and member s inconsiste nt with the true factual context." C-Line , 292 NLRB at 63 8 (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 substantia l evidence on the record.

IV. CONCLUSION
For the f oregoing reasons we hold that the Board's determination is unsupp orted by substantial record evidence and, with regard to it s sub jective analysis in this case, otherwise not in accordance with law
. We reverse the decision of the Board holding that the ULP's committed by Companyagents converted the Union's strike from an economic strike into an unfair labor pract ice 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 enforcemen t in part, in accordance with this opinion.
A true copy.

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