*Of the Northern District of California, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 00-2420

RYAN IRON WORKS, INC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

NATIONAL SHOPMEN PENSION FUND; SHOPMEN’S

LOCAL 501 INTERNATIONAL ASSOCIATION OF BRIDGE,

 STRUCTURAL AND ORNAMENTAL IRONWORKERS, AFL-CIO,

Intervenors.

ON PETITION FOR REVIEW AND CROSS-APPLICATION

FOR ENFORCEMENT OF AN ORDER OF THE 

NATIONAL LABOR RELATIONS BOARD 

Before

 Lynch, Circuit Judge,

Coffin, Senior Circuit Judge,

and Schwarzer,* Senior District Judge.

Robert P. Corcoran, for petitioner.
William M. Bernstein, Senior Attorney, with whom Leonard R.

Page, Acting General Counsel, John H. Ferguson, Associate General

Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel,

were on brief, for respondent.

Marc H. Rifkind, with whom Lynn A. Bowers, Marc A. Tenenbaum,

Slevin & Hart, P.C., Mary T. Sullivan and Segal, Roitman & Coleman

were on brief, for intervenor.

_____________

July 16, 2001

____________
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SCHWARZER, Senior District Judge. Ryan Iron Works, Inc.

(Ryan) petitions for review of an order of the National Labor Relations

Board (Board) finding violations of Sections 8(a)(3) and (5) of the

National Labor Relations Act (Act), 29 U.S.C. §§ 158(a)(3) and (5).

The Board has cross-applied for enforcement of its order in which it

found that Ryan had committed a series of unfair labor practices during

negotiations for a new collective bargaining agreement (CBA) with the

bargaining representative of its employees, Shopmen’s Local 501,

International Association of Bridge, Structural and Ornamental

Ironworkers, AFL-CIO (the Union), and that an economic strike of its

employees was converted into an unfair labor practice strike following

an incident of direct dealing between Ryan’s president and one of its

workers. We affirm the Board’s order with respect to the unfair labor

practices but hold that the record lacks substantial support for the

finding that the strike was converted prior to its termination on

December 8, 1995. Accordingly, we grant the Board’s application in

part only.

FACTUAL BACKGROUND

Ryan is a corporation engaged in the fabrication of iron,

steel and metal products at its plant in Raynham, Massachusetts. It

has been party to a series of CBAs with Local 501 for more than twentyfive years. The most recent CBA between the parties was in effect from

September 11, 1992, to September 10, 1995. The events giving rise to
1Unlike economic strikers, unfair labor practices strikers are

entitled to reinstatement and back pay even if they have been replaced

during the strike. NLRB v. Harding Glass Co., Inc., 80 F.3d 7, 10 n.3

(1st Cir. 1997). 

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this controversy occurred in the course of the negotiations for a

successor CBA.

The parties met in negotiations eight times from August 18

to November 10, 1995. The Union presented a list of demands, including

significant wage and benefits increases, and Ryan, in turn, proposed to

reduce wages and benefits in several areas. At the August 29 session,

Union representative David Mortimer (Mortimer) told Ryan’s negotiating

team that the company’s proposal was “an insult and a piece of garbage”

and that the Union “would not give up one cent” in givebacks or

concessions of any kind. Another Union official made a similar comment

at the August 31 session, where Ryan offered to increase its pension

and health insurance contributions, and reiterated that the Union would

not agree to any givebacks or concessions. 

On September 7 the Union filed an unfair labor practice

charge against Ryan for failure to bargain in good faith, a charge that

was ultimately rejected by the Board. On September 8 the employees

voted to reject Ryan’s proposal. Because of the pendency of the

charge, the Union told its members that a strike would be an unfair

labor practice strike as opposed to an economic strike, meaning that

none of them could be permanently replaced.1 The members took a strike
-5-

vote and went out on September 11, the day after the CBA expired. The

parties continued to meet, however, and at the September 18 session the

Union modified its proposal, reducing both its hourly wage and pension

fund contribution demands. Ryan rejected this proposal and on October

2 countered with a proposal which included an increase in vacation time

for certain employees and the shoe allowance but enlarged its right to

subcontract unit work. The Union rejected this proposal but made a

counterproposal for a three-year contract providing for increased wages

and pension contributions. 

On October 23, Ryan’s president, Howard Shea (Shea), invited

Wallace Penniman (Penniman), who was walking the picket line with

twenty to thirty other striking employees, to take a ride to inspect

one of Ryan’s construction jobs. Penniman agreed and the two men drove

off. The parties dispute much of the content of the conversation

during that car trip. According to Penniman, Shea stated “that it was

the Union’s fault [that negotiations were going poorly] because they

weren’t negotiating with the Company” and asked what exactly the men

wanted. Penniman told Shea that the employees’ main concern was

seniority, and Shea responded that Ryan’s proposal on seniority was

merely a bargaining tool or a smokescreen to gain concessions. Shea

told Penniman “that [Ryan] was going to need another three-year pay

freeze to be competitive with the non-union shops.” The two men then

discussed the possible pay freeze, as well as vacations, holidays, work
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boot allowances, subcontracting, pensions, health insurance and

arbitration. According to Penniman, the discussion was extensive,

lasting the entire drive to Waltham and back, a trip of about three

hours. Before dropping him off, Shea told Penniman that this was the

type of negotiating he was hoping for from the Union and said that

there were only a few items on Ryan’s list that it needed. As Penniman

got out of the car at the picket line, Shea told him “not to worry

about it, that it was going to be resolved.” 

In his testimony, Shea admitted that he told Penniman that

the Union had refused to respond to any of the company’s proposals but

denied that there was any substantive discussion of Ryan’s bargaining

proposals. According to Shea, when Penniman asked him about the

negotiations, Shea told him they should not discuss them. 

The Administrative Law Judge (ALJ) accepted Penniman’s

version of the conversation and found that Shea had dealt directly with

an individual employee concerning the negotiations, thereby unlawfully

bypassing and undermining the Union.

Penniman testified that the conversation led him to feel

optimistic about the possibility of a quick resolution and that he

shared it with the other picketers who saw him leave and return with

Shea. Later that day he told Union representative Mortimer about the

conversation and Mortimer arranged for another negotiating session on

October 25. The parties dispute whether the Union brought up the
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Shea/Penniman conversation at that session. Ryan argues that there was

no mention of the incident and Mortimer testified as much, but Union

negotiator James Devlin testified that when he raised the question of

the differences between the positions taken by Ryan at the table and

those taken away from the table he was referring in part to the

Shea/Penniman incident. In any case, Ryan did not change its position.

When Union officials reported this to the employees, the employees

reacted with disappointment and anger. Having been led to believe that

an early resolution was in the offing, some blamed the Union for the

lack of progress.

 On November 6 Ryan unilaterally altered the terms of

employment by implementing the changes in the CBA set out in its

October 2 proposal. On November 10 it also discontinued contributions

to the National Shopmen Pension Fund (Fund) required under the expired

CBA. At the final negotiating session on that same day, the Union

modified its earlier proposal and accepted some of Ryan’s proposals.

Ryan rejected the Union proposal and stood on its October 2 proposal.

On November 16 the Union withdrew its previous proposal and offered a

three-year extension of the expired contract with several wage freeze

concessions. On November 21 Ryan rejected that proposal but told the

Union that it was willing to meet to “discuss the significant

differences between them.” 

On December 7 Ryan received a petition signed by fifty-five
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employees stating that they no longer wished to be represented by the

Union and it notified the Union that it was therefore withdrawing

recognition from the Union. On December 8 the Union voted to end the

strike and faxed Ryan a letter offering the return of all striking

workers to their jobs by December 11. When the workers showed up they

were met by Shea, who told them there were no jobs for them. 

STANDARD OF REVIEW

We grant the Board “deference with regard to its

interpretation of the Act as long as its interpretation is rational and

consistent with the statute.” NLRB v. Beverly Enters.-Mass., Inc., 174

F.3d 13, 22 (1st Cir. 1999). “The Board’s findings of fact are

conclusive if supported by substantial evidence on the record

considered as a whole.” Id. at 21. Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474,

477 (1951) (citation omitted). The ultimate question is “ <whether on

this record it would have been possible for a reasonable jury to reach

the Board’s conclusion.’” NLRB v. Hosp. of San Pablo, Inc., 207 F.3d

67, 70 (1st Cir. 2000) (quoting Allentown Mack Sales & Svc., Inc. v.

NLRB, 522 U.S. 359, 366-67 (1998)).

I. THE DIRECT DEALING CHARGE

A. The Unfair Labor Practice Charge

The Board accepted the ALJ’s finding that Shea’s discussion
2The ALJ gave three reasons for believing Penniman over Shea, only

one of which was adopted by the Board: Penniman’s demeanor. The other

two were: (1) the ALJ’s incorrect belief that Penniman was no longer a

Ryan employee or a Union member and therefore had no stake in his

testimony, and (2) his assumption that Shea would not take a striking

worker from the picket line for a drive and not mention the strike. 

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with Penniman was a violation of Section 8(a)(5), which prohibits

employers from bypassing the Union and dealing directly with employees.

Ryan initially attacks the ALJ’s credibility determination, which was

based principally on the relative demeanor of the witnesses and

affirmed by the Board.2 That determination is entitled to great weight

because the ALJ saw and heard the witnesses testify, see Holyoke

Visiting Nurses Ass'n v. NLRB, 11 F.3d 302, 308 (1st Cir. 1993), and we

will not disturb it so long as the ALJ's position represents a choice

between two fairly conflicting views. We will set aside such findings

only if we believe that the ALJ overstepped the bounds of reason. Id.;

3-E Co., Inc. v. NLRB, 26 F.3d 1, 3 (1st Cir. 1994). While the ALJ’s

finding may have been somewhat conclusory, we see nothing in the record

to suggest that it was unreasonable. 

Ryan next contends that even if Penniman’s testimony is

credited, the conversation he describes is not sufficient to establish

a direct dealing violation. Section 8(a)(5) of the Act imposes a duty

on an employer to bargain collectively with its employees’ chosen

representative. This obligation is exclusive and Section 9(a) of the

Act, 29 U.S.C. § 159(a), accordingly “exacts <the negative duty to treat
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with no other.’” Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 684

(1944) (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 44

(1937)). “[O]rderly collective bargaining requires that the employer

be not permitted to go behind the designated representatives, in order

to bargain with the employees themselves. . . .” Id. at 685. “The

fundamental inquiry in a direct dealing case is whether the employer

has chosen <to deal with the Union through the employees, rather than

with the employees through the Union.’” NLRB v. Pratt Whitney Air

Craft Div., 789 F.2d 121, 134 (2d Cir. 1986) (citation omitted).

The Board found that Shea’s discussion with Penniman amounted

to direct dealing because “[Shea] told Penniman that it was the Union’s

fault because they [sic] were not negotiating with the Company, asked

Penniman what the employees wanted, and sought to minimize [Ryan’s]

bargaining demands.” Ryan contends that the Board erroneously applied

the law and that Shea’s comments were merely an attempt to inform

employees about the course of the negotiations and Ryan’s position.

See United Technologies Corp., 275 NLRB 1069, 1074 (1985) (“[A]n

employer has a fundamental right, protected by Section 8© of the Act,

to communicate with its employees concerning its position in collective

bargaining negotiations and the course of those negotiations.”). Ryan

characterizes the incident as simply conversation about proposals which

had already been submitted to the Union and encouragement to press

Union officials to start talking to management. Although Ryan concedes
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that Shea blamed the Union for the lack of progress, it argues that

Shea never encouraged Penniman to abandon the Union in order to achieve

a better deal.

While an employer may communicate or clarify its position to

employees, Shea, even if he did not encourage abandonment of the Union,

went well beyond what is permissible. Shea told Penniman that the

failure of negotiations was the Union’s fault and actively solicited

Penniman’s input on “what exactly . . . the men want.” Such

solicitation allows an employer to gain intelligence on employees’

views and to gauge the level of support for a particular position,

undermining the chosen representative’s exclusive right to perform

these functions. See Alexander Linn Hosp. Ass’n, 288 NLRB 103, 106

(1988), enforced, NLRB v. Wallkill Valley Gen. Hosp., 866 F.2d 632 (3d

Cir. 1989); NLRB v. M.A. Harrison Mfg. Co., 682 F.2d 580, 581-82 (6th

Cir. 1982) (enforcing Board order against employer for bypassing Union

by directly soliciting employee views on an insurance plan). Shea,

through Penniman, obtained information about the employees’ views on

seniority, holidays, vacation time, a 401K plan, health insurance, a

work boot allowance and subcontracting. This is a virtual laundry list

of the issues Ryan and the Union were covering in negotiations. 

Contrary to Ryan’s contentions, Shea’s comments on these

subjects went beyond merely clarifying the proposals the company had

already submitted to the Union. For instance, he told Penniman that
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several of Ryan’s stated positions were smokescreens, and that Ryan

only intended to take away two holidays rather than the five it

demanded at the bargaining table. Additionally, his subsequent comment

to Penniman that, “that’s what we’re looking for, that kind of

negotiating,” implies that he was attempting to negotiate with the

employees through Penniman. Rather than “merely communicat[ing] what

was already before the Union in a proper exercise of [Ryan’s] free

speech rights,” Shea sought feedback from an employee to strengthen

Ryan’s position in the negotiations. Cf. Americare Pine Lodge Nursing

and Rehab. Ctr. v. NLRB, 164 F.3d 867, 877 (4th Cir. 1999). That Shea

picked Penniman up at the crowded picket line and three hours later

dropped him off where other employees would notice and ask questions

reinforces this conclusion.

This case thus bears no resemblance to Americare Pine Lodge

Nursing and Rehabilitation Center v. NLRB, 164 F.3d at 878-79, on which

Ryan relies. There, a supervisor asked a bargaining unit employee

during a smoking break what she thought of a recent employer proposal,

the employee responded that it “sounded good, but that it was only made

to get rid of the Union,” and the conversation went no further. Id. at

878. The court held that “[n]o reasonable person could conclude that

this brief exchange eroded the Union’s position as the exclusive

bargaining representative.” Id. Shea’s three-hour discussion with

Penniman was more than this “casual conversation.” Id. Shea actively
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solicited Penniman’s views, made new proposals, and, at least with

respect to the subcontracting issue, questioned Penniman as to how the

company’s offer could be improved. Id. at 879.

In sum, substantial evidence supports the Board’s finding

that Shea’s October 23 conversation with Penniman violated Section

8(a)(5) of the Act.

B. Conversion

“A strike begun in support of economic objectives becomes an

unfair labor practice strike when the employer commits an intervening

unfair labor practice which is found to make the strike last longer

than it otherwise would have.” Soule Glass and Glazing Co. v. NLRB,

652 F.2d 1055, 1079 (1st Cir. 1981). Not every unfair labor practice

will convert a strike, however. We have held that “[c]ausation is

crucial: <It must be found not only that the employer committed an

unfair labor practice after the commencement of the strike, but that as

a result the strike was “expanded to include a protest over [the]

unfair labor practice[],” and that settlement of the strike was thereby

delayed and the strike prolonged.’” Harding Glass, 80 F.3d at 10

(quoting Soule Glass, 652 F.2d at 1079-80). The General Counsel bears

the burden of establishing that “the unlawful conduct was a factor (not

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

the work stoppage.” C-Line Express, 292 NLRB 638 (1989). The Board

may consider both objective and subjective evidence in assessing
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whether the General Counsel has met this burden:

Applying objective criteria, the Board and

reviewing court may properly consider the

probable impact of the type of unfair labor

practice in question on reasonable strikers in

the relevant context. Applying subjective

criteria, the Board and court may give

substantial weight to the strikers’ own

characterization of their motive for continuing

to strike after the unfair labor practice.

Soule Glass, 652 F.2d at 1080.

The ALJ found that Shea’s activity did not convert the strike

because there was no evidence that the employees continued to strike

because of it. A majority of the Board disagreed, finding that the

strike had been converted because the unlawful effort to bypass the

Union’s representatives “could not help but prevent and inhibit goodfaith bargaining, thereby prolonging the strike.” It further found

this objective inference to be supported by subjective evidence of the

divisive effect of this conduct on the strikers and their union

negotiators. Board Member Hurtgen dissented, finding that there was no

evidence that the single, isolated incident of direct dealing had a

deleterious impact on subsequent negotiations or that it prolonged the

strike.

The Board has in the past recognized that:

the presence or absence of evidence of

[employees’] subjective motivation has not always

been the sine qua non for determining whether

there has been a conversion. Certain types of

unfair labor practices by their nature will have
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a reasonable tendency to prolong the strike and

therefore afford a sufficient and independent

basis for finding conversion. The most notable

examples typically involve an unlawful withdrawal

of recognition which may be accompanied by a

course of other unlawful conduct, including

withdrawal of contract proposals, refusals to

meet and bargain, and recognition of another

union. The common thread running through these

cases is the judgment of the Board that the

employer’s conduct is likely to have

significantly interrupted or burdened the course

of the bargaining process.

C-Line Express, 292 NLRB at 639. See also Harding Glass, 80 F.3d at 11

(citing SKS Die Casting & Machining, Inc. v. NLRB, 941 F.2d 984, 991

(9th Cir. 1991) (refusal to reinstate strikers); Vulcan Hart Corp. (St.

Louis Div.) v. NLRB, 718 F.2d 269, 276 (8th Cir. 1983) (withdrawal of

recognition)). But, as we said in Harding Glass:

Always, however, the principal focus must remain

on the element of causation, and specific,

subjective evidence of changed motivation may be

foregone only in those instances in which the

objective factors by themselves establish

unequivocally that a conversion occurred.

80 F.3d at 12. Here, the Board relies on what it calls an “objective

inference” that Shea’s conduct prolonged the strike, but it cites no

objective evidence and we agree with the ALJ that “there is simply no

evidence that the employees continued to strike because of Shea’s

activity.” Nor do the decisions in Safeway Trails, 233 NLRB 1078

(1977), enforced, 641 F.2d 930 (D.C. Cir. 1979), and Beaumont Glass

Co., 310 NLRB 710 (1993), on which the Board relied, support its
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decision. 

The Board has in another context described Safeway Trails as

involving “an egregious effort by the employer to obtain the employees’

repudiation of their union representative as a precondition to revoking

a collective bargaining agreement.” Forest Grove Lumber Co., 275 NLRB

1007, 1007 n.1 (1985). There, the employer had engaged in repeated

oral and written communications with employees and others clearly

intended to undermine the status and authority of the union’s chosen

bargaining representative in violation of Section 8(a)(5). These

efforts to undermine the union representative were well known to the

employees and were discussed at meetings of the union membership. The

Board found that:

Under these circumstances, the inference is clear

that the Respondent’s actions and communications

served to aggravate and prolong the strike. The

fact that the Respondent was not successful in

undercutting [the Union representative] does not

negate our finding that the Respondent’s

misconduct was a concern to employees and a

factor in the prolongation of the strike.

Moreover, the very nature of the Respondent’s

misconduct--appealing directly to employees in an

attempt to undercut the union representative--is

such as could not help but prevent and inhibit

good-faith bargaining, thereby prolonging the

strike.

Safeway Trails, 233 NLRB at 1082. 

The instant case--involving a single incident which had no

discernible impact on the ongoing bargaining process--bears no
3See supra p. *, lines 93-99.

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resemblance to Safeway Trails. Nor does it bear even remote

resemblance to Beaumont Glass, where conversion was found on evidence

that: the employer sent a memorandum to the membership of the union

with a proposal which had not previously been made at the bargaining

table; the employees complained to the union representative when he

told them the proposal would not be put to a vote; the representative

testified that “the publication and distribution of the memorandum

destroyed the negotiations” and that no meaningful negotiating sessions

were held subsequently; and the union changed the language on its

picket signs to signify it was protesting the employer’s unfair labor

practices. 310 NLRB at 719. No such evidence appears in this record.

Indeed, if the Shea/Penniman incident was ever mentioned at the October

25 negotiating session at all, it was at most a passing reference.3

Mortimer later testified that no progress was made during that session

because “we both agreed that we were just making no changes. We were

sticking to our proposal. . . . After a little discussion from both

sides, it was obvious nothing was going to change. . . .” The incident

was apparently not mentioned at the October 30 session either and, as

noted above, the Union did not file an unfair labor practice charge

regarding the incident until nearly six months later. 

We find Forest Grove Lumber Company, 275 NLRB 1007, more

closely on point. There, the employer, during a strike, had several
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discussions with employees about the status of negotiations, many quite

similar to the Shea/Penniman conversation. Employees testified that

the vice president spoke to them about the company’s proposals, the

stalemate in negotiations, and the union’s refusal to bargain, and

solicited their views on what it would take to get the strikers back to

work. One employee stated that the vice president told him that the

company’s proposal was not a firm proposal, that everything was

negotiable, and that only by asking for more than what it wanted could

the company reach an agreement. In rejecting the General Counsel’s

contention that the strike had been converted, the Board said:

Safeway Trails involved the factual context of an

egregious effort by the employer to obtain the

employees’ repudiation of their union

representative as a precondition to revoking a

collective-bargaining agreement. Consequently,

the unlawful conduct in Safeway Trails clearly

intruded on the bargaining process and “could not

help but” prolong the strike. In contrast, the

Respondent’s unlawful conduct here involved

solicitation of employees to urge their

representatives to soften the Union’s bargaining

demands, and there was no effort to repudiate

those bargaining representatives. The unfair

labor practices here did not have any inevitable

impact on bargaining that would necessarily cause

prolongation of the strike.

Id. at 1007 n.1. 

 Simply put, that the Shea/Penniman conversation may have raised

hopes among employees for an early end to the strike--hopes that were

dashed when negotiations resumed, leading to “consternation” among
4The General Counsel did not brief the issue but contended at oral

argument that the record was devoid of any evidence that the strikers

were separately motivated by the Shea/Penniman conversation because the

ALJ erroneously sustained Ryan’s objections to the necessary line of

questioning. However, because the General Counsel’s offer of proof,

while it shows that the strikers were disturbed by the direct dealing,

fails to establish that the strikers shifted the focus of their protest

to include the Shea/Penniman incident and thereby prolonged the strike,

we find no prejudice. 

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employees--does not support the conclusion that the strike was thereby

prolonged. “The Board’s obligation is to provide some basis for an

inference that, in the aftermath of the [unfair labor practice], the

employees were separately motivated by that act.” Harding Glass, 80

F.3d at 12. It is clear that the strike was about economic issues and

there is no evidence that the strikers’ motivation changed, in whole or

in part, on account of the Shea/Penniman incident.4 See Facet

Enterprises, Inc. v. NLRB, 907 F.2d 963, 977 (10th Cir. 1990) (“[T]o

sustain a finding of conversion, there must be some evidence in the

record that the . . . employees reacted to information of Facet’s

direct dealing substantively in a fashion which aggravated or prolonged

the strike.”); see also F.L. Thorpe & Co., Inc. v. NLRB, 71 F.3d 282,

288 (8th Cir. 1995) (holding it was error to base conversion finding on

“caused consternation” test where evidence established strike remained

economically motivated); Gibson Greetings, Inc., 310 NLRB 1286, 1292

n.5 (1993) (finding no conversion because “[a]lthough several strikers

testified that they were distressed by the [Company’s] letter, none

suggested that it was because of that letter that the strike continued,
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nor that the strikers discussed it collectively as a basis for

continuing the strike.”), enforcement denied on other grounds, Gibson

Greetings, Inc. v. NLRB, 53 F.3d 385 (D.C. Cir. 1995); Soule Glass,

652 F.2d at 1082.

Thus, while we find no basis for disturbing the Board’s

determination with regard to the direct dealing charge, our review of

the record persuades us that the finding of conversion on that basis is

not supported by substantial evidence.

II. THE UNILATERAL IMPLEMENTATION CHARGE

A. The Unfair Labor Practice Charge

On November 6, when some cross-over employees began returning

to work, Ryan implemented its October 2 contract proposal. The Board

determined that this unilateral implementation was an unlawful labor

practice and, further, that it converted the strike to an unfair labor

practice strike. 

“[A]n employer must bargain to impasse before making a unilateral

change” in terms and conditions of employment. Visiting Nurse Serv. of

W. Mass., Inc. v. NLRB, 177 F.3d 52, 57 (1st Cir. 1999). “ <Impasse

occurs when, after good faith bargaining, the parties are deadlocked so

that any further bargaining would be futile,’ i.e., when <there [is] no

realistic prospect that continuation of discussions at that time would

. . . [be] fruitful.’” Beverly Enters.-Mass., 174 F.3d at 27 (citation

omitted). Relevant factors include “<[t]he bargaining history, the good
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faith of the parties in the negotiations, the length of the

negotiations, the importance of the issue or issues as to which there

is disagreement, [and] the contemporaneous understanding of the parties

as to the state of negotiations.’” NLRB v. Charles D. Bonanno Linen

Serv., Inc., 630 F.2d 24, 35 n.24 (1st Cir. 1980) (citation omitted).

We have held in the past that the determination of whether the parties

reached good-faith impasse is particularly well-suited to the expertise

of the Board. See Beverly Enters.-Mass., 174 F.3d at 27. 

The Board found that although during the four months of

negotiations there had been “limited movement,” credible evidence

showed that Ryan had not been adamant on all its proposals. Both sides

made some concessions, and more importantly, Ryan never told the Union

that failure to agree on its proposal would result in deadlock or that

there was an impasse and that it would implement its proposals. See

Hotel Roanoke, 293 NLRB 182, 185 (1989) (“The failure of a party to

communicate to the other party the paramount importance of the

proposals presented at the bargaining table or to explain that a

failure to achieve concessions would result in a bargaining deadlock

evidences the absence of a valid impasse.”). Nor is there evidence that

when Ryan implemented its October 2 proposal, or at any time

thereafter, a contemporaneous understanding existed between the parties

that talks were at an impasse. Indeed, the parties held a negotiating

session with a federal mediator on November 10, after the
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implementation, and the Union offered additional concessions at that

time. And in a letter dated November 21, Ryan’s counsel stated that

although the Union’s latest proposal was unacceptable, it was willing

to meet and discuss “the Company’s outstanding offer of October 2nd.”

Ryan had the burden of proof on this issue and it failed to sustain it.

See PRC Recording Co., 280 NLRB 615, 635 (1986), enforced, Richmond

Recording Corp. v. NLRB, 836 F.2d 289 (7th Cir. 1987).

 Substantial evidence supports the Board’s finding that Ryan’s

unilateral implementation of its October 2 proposal violated Section

8(a)(5) of the Act. 

B. Conversion

The Board determined that this violation also converted the

strike, finding that “[i]n conjunction with Shea’s earlier bypass of

the Union, it can be inferred that [Ryan’s] unilateral changes were

also unfair labor practices that prolonged the strike.” The Board

found that the employees must have been aware of the implementation of

the October 2 proposal no later than November 11, when striking workers

would have noticed that cross-over and replacement employees were

working on Veterans Day, a holiday, and thus that there had been a

unilateral change in the holiday policy. However, as the Board

determined earlier in its opinion, it was not unlawful for Ryan to

implement different terms of employment for striker replacements

because struck employers have no obligation to bargain about terms of
-23-

employment for replacements. See Detroit Newspaper Agency, 327 NLRB

871 (1999); see also Service Electric Co., 281 NLRB 633 n.1 (1986)

(because interests of returning economic strikers are more closely

aligned with those of the strike replacements than those of the

strikers, an employer has no greater duty to bargain during the strike

over their terms of employment than it does over the strike

replacements’). Strikers observing workers at the plant that day would

therefore not necessarily have concluded that their presence meant that

the terms of the CBA had been unilaterally changed.

In any event, the Board’s evidence is, at best,

circumstantial (if not entirely speculative) proof that employees may

have known that a change had been made in the terms of (their)

employment. But it fails to satisfy “[t]he Board’s obligation . . . to

provide some basis for an inference that, in the aftermath of the

implementation, the employees were separately motivated by that act.”

Harding Glass, 80 F.3d at 12. There is no objective or subjective

evidence that the arrival of workers on a holiday motivated the

striking employees to prolong the strike or that it interfered with the

bargaining process.

The Board’s finding of conversion is not supported by

substantial evidence. See Beverly Enters.-Mass., 174 F.3d at 22 n.1

(“Substantial evidence is not a rubber stamp.”).

III. WITHDRAWAL OF RECOGNITION
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The Board found that on December 6 Ryan received a petition

from some fifty-five cross-over and replacement workers (out of a total

of ninety-five employees), stating that they did not want to be

represented by the Union. On December 7 Ryan withdrew recognition

based on the petition. On December 8 the Union advised that its

members would unconditionally return to work on December 11. On that

date, Ryan declined to reinstate the strikers, although sometime later

it offered reinstatement to all but twelve of the original sixty-one

strikers. The Board found the withdrawal of recognition “in the

context of unremedied unfair labor practices on December 7” to be a

violation of Section 8(a)(5). 

 During the term of a CBA, an incumbent union enjoys an

irrebuttable presumption of majority employee support. See Auciello

Iron Works, Inc. v. NLRB, 517 U.S. 781, 786 (1996). Upon expiration of

the contract, the employer can rebut that presumption and withdraw

recognition if it can show either that the union in fact lacked

majority support or that the employer had a good faith, objectively

justified doubt regarding the union’s majority. See Destileria

Serrales, Inc. v. NLRB, 882 F.2d 19, 20-21 (1st Cir. 1989). However,

if an employer has “committed as yet unremedied unfair labor practices

that could have reasonably tended to contribute to employee

disaffection from the union,” it may not rely on employee expressions

of disaffection, such as a petition, as a basis for withdrawal of
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recognition. United Supermarkets, Inc. v. NLRB, 862 F.2d 549, 553 n.6

(5th Cir. 1989) (citing Chicago Magnesium Castings Co., 256 NLRB 668,

674 (1981)); accord Bolton-Emerson, Inc. v. NLRB, 899 F.2d 104, 107-08

(1st Cir. 1989) (“justified withdrawal [of recognition] requires . . .

a context free of unfair labor practices”); Soule Glass, 652 F.2d at

1110. The General Counsel must prove a causal relationship

between unremedied unfair labor practices and the loss of majority

status, but direct evidence showing actual taint is not required. See

United Supermarkets, Inc., 862 F.2d at 552 n.5. It is sufficient that

the unfair labor practices would reasonably tend to cause employee

disaffection. See NLRB v. Hi-Tech Cable Corp., 128 F.3d 271, 279 (5th

Cir. 1997). Factors typically considered include: (1) the length of

time between the unfair labor practices and the withdrawal of

recognition; (2) the nature of the illegal acts, including the

possibility of their detrimental or lasting effect on employees; (3)

any possible tendency of the unfair labor practices 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. Master Slack Corp., 271 NLRB 78, 84 (1984). Here, the petition

was presented six weeks after the direct dealing incident and four

weeks after the unlawful November 6 implementation, both violations of

a type that weaken the authority of a union and encourage employees to

doubt its ability to successfully represent them. While we think it is
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a close question, we conclude that the Board could reasonably consider

that these two unfair labor practices, particularly in combination,

“significantly contributed” to the Union’s loss of majority status.

Williams Enters., Inc., 312 NLRB 937, 940 (1993), enforced, NLRB v.

Williams Enters., Inc., 50 F.3d 1280 (4th Cir. 1995). We therefore

affirm the Board’s bargaining order.

Because the strike ended at approximately the same time as

the withdrawal of recognition (at least there is no evidence of any

employees being replaced on December 7 or 8), conversion is not an

issue and we do not read the Board’s order as making a determination of

conversion based on withdrawal of recognition. Because we reject the

Board’s determinations of conversion on October 23 or November 11, the

strikers are entitled only to the reinstatement rights of economic

strikers. See Rose Printing Co., 289 NLRB 252, 253 (1988). 

CONCLUSION

We affirm the Board’s finding that the October 23

Shea/Penniman conversation and the November 6 unilateral implementation

of Ryan’s bargaining proposal constituted unfair labor practices.

Further, we affirm the Board’s finding that these practices

“significantly contributed” to the Union’s loss of majority status.

Consequently, we affirm that portion of the Board’s remedial order

aimed at undoing the effects of these practices. This includes the

provisions of the order requiring Ryan to recognize and bargain with
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the Union and, upon request, to rescind and compensate for the

unilateral changes made on or after November 6, 1995 to the terms of

employment for bargaining unit employees. However, because we reject

the Board’s determinations of conversion, we deny enforcement of that

portion of the Board’s order granting reinstatement and backpay to

unfair labor practice strikers. Because we find that no conversion,

and hence no unfair labor practice strike, occurred, this relief is no

longer apposite. Accordingly, the Board’s application for enforcement

of its order is granted in part and denied in part. 

GRANTED in part, DENIED in part.