In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 02-2209 & 02-2566

NATIONAL LABOR RELATIONS BOARD,

Petitioner/Cross-Respondent,

v.

MIDWESTERN PERSONNEL SERVICES, INC.,

Respondent/Cross-Petitioner.

____________

Application for Enforcement and Cross-Petition for

Review of an Order of the National Labor Relations Board.

Nos. 25-CA-25978-5, 25-C-25823-3 & 25-C-25503-2

____________

ARGUED DECEMBER 2, 2002—DECIDED MARCH 11, 2003

____________

Before BAUER, POSNER, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Midwestern Personnel Services

refused to reinstate 26 striking employees after the union

that a majority of its employees had selected as their

bargaining representative made an unconditional offer

to return to work. Midwestern refused to reinstate the

strikers because, in its view, the strike was staged solely

for economic reasons, which if true would permit it to

permanently replace the strikers. But the National Labor

Relations Board concluded that the strikers were motivated in part by unfair labor practices, and thus were entitled to immediate reinstatement under Sections 8(a)(3)
2 Nos. 02-2209 & 02-2566

and (a)(1) of the National Labor Relations Act (“NLRA”), 29

U.S.C. §§ 158(a)(3), (a)(1). The Board now petitions for

enforcement of its order to reinstate the strikers, and

Midwestern petitions for review. Because we conclude

that substantial evidence on the record as a whole supports the Board’s conclusions, we grant the petition for

enforcement and deny the petition for review.

I.

Midwestern provides cement and transport truck drivers to River City Holdings, Inc., which sells concrete mix

and related products from facilities located in Boonville

and Rockport, Indiana, and Owensboro, Kentucky, as well

as other locations. As of early 1997, Midwestern supplied

between 40 and 50 drivers to the three River City facilities. In April 1997, River City announced to Samuel Ware,

Midwestern’s president, that it had agreed to supply

cement products to a job site known as the “AK Steel job”

from its Rockport plant, and that it would need to increase the number of drivers working out of Rockport

from seven to about sixteen. River City also informed

Ware that AK Steel was a union job site, and that it

understood that Midwestern’s drivers would need to

hold union authorization cards in order to enter the property.

Midwestern’s Indiana and Kentucky drivers were not

union-represented. But at the time Midwestern had a

collective bargaining agreement with the Chauffeurs,

Teamsters, and Helpers (“Teamsters”) Local Union 836

in Middletown, Ohio, covering Midwestern’s employees

based in York, Pennsylvania, although none of these

employees worked at River City facilities. Ware placed

a call to Local 836’s business agent, Tom Kinman, whom

he had dealt with in the past, to inquire whether Local

836 would “come into” Indiana. Kinman responded that
Nos. 02-2209 & 02-2566 3

it would and agreed to meet with the Rockport drivers

on June 2, 1997. Ware then told James Teegarden, Midwestern’s area manager, that he planned on adding the

Rockport drivers within the coverage of the existing collective bargaining agreement with Local 836. To help him

prepare for the meeting with the drivers, Teegarden sent

Kinman information about Midwestern’s Indiana operations and employees. Shortly before the meeting took

place, Ware and Kinman negotiated the terms of the

addendum. They agreed that the Rockport drivers would

receive a 20-cent per hour raise (Kinman insisted on this)

but would otherwise maintain their existing benefits and

terms of employment. In all other respects, the addendum

was identical to the contract covering the York employees, which included a no-strike clause.

Ware typed the addendum himself sometime on June 2,

1997. That same evening, Midwestern’s seven Rockport

drivers, accompanied by Teegarden, met Kinman at a

local restaurant after their shifts. Teegarden opened the

meeting by circulating an attendance sheet and directing each driver to sign it, and by introducing Kinman, who distributed unsigned union authorization cards.

Teegarden then told the drivers about the AK Steel job

and explained that AK Steel was unionized and that

they would have to join the union to enter its property.

Teegarden further explained that this meant that the

drivers would have to join the union if they wanted to

keep working at Rockport. Teegarden then announced

that Midwestern and Teamsters Local 836 were prepared

to include them in the existing collective bargaining

agreement. Teegarden then left the room to allow Kinman to speak. Between 15 and 45 minutes later (the precise time is disputed) one of the drivers asked Teegarden

to come back into the meeting to answer a question. The

driver asked Teegarden what would happen if the drivers signed the authorization cards but still did not want
4 Nos. 02-2209 & 02-2566

to join Local 836. Teegarden responded that if they voted

to let the union in, they would have to join the union to

continue driving trucks out of Rockport, “or something to

that effect,” he would later testify. At the end of the meeting, all seven drivers signed the cards, but no formal vote

was taken whether to join Local 836. The following day,

Kinman faxed copies of the signed cards to Ware.

Discontent soon arose among the drivers about what

they perceived as being forced to join an out-of-state

union. Word of their unhappiness quickly spread to Teamsters Local 215 in Evansville, Indiana, which then

sought to organize Midwestern’s Rockport, Boonville, and

Owensboro drivers. By July 1997, several drivers from

each location had signed union authorization cards with

Local 215, and on July 29 Local 215 filed unfair labor

practices charges with the NLRB against Midwestern.

Local 215 also filed an internal grievance with the International Brotherhood of Teamsters (“IBT”) complaining

that Local 836—which by then had merged with Teamsters

Local 100 in Cincinnati and was known as Local 836/100—

violated internal union rules by entering Local 215’s

territory. On September 11, 1997, Local 836/100 informed

Midwestern that it was returning all dues remitted by

the Rockport drivers for August 1997, and that all future

dues should be sent to Local 215 in Evansville. Local

836/100 also informed the IBT that it did not oppose “transferring” the Rockport drivers to Local 215, although

Local 836/100 did not formally disclaim its interest in

representing the Rockport drivers until December 5, 1997.

On October 1, 1997, Midwestern received a letter from

Local 215 announcing that Local 215 represented a majority of Midwestern’s drivers working from River City’s

Rockport, Boonville, and Owensboro facilities, and requesting recognition as the drivers’ bargaining unit.

Midwestern did not respond favorably to Local 215’s letter,

and soon Ware began to hear rumors of a strike. In late
Nos. 02-2209 & 02-2566 5

November Ware dispatched Teegarden to meet with the

drivers and determine whether the rumors were true.

After learning that the rumors were indeed true, Teegarden

warned the drivers that they were still subject to the

collective bargaining agreement between Midwestern

and Local 836/100, including its no-strike clause. The

drivers then demanded a meeting with Ware. Ware met

with the drivers on December 1 and 2, and he repeated

Teegarden’s warning, admonishing the drivers that the nostrike clause in the Midwestern-Local 836/100 contract

permitted Midwestern to terminate and permanently

replace any striking employees. Ware added that Midwestern might also take disciplinary measures or legal

action. Some of the drivers responded by demanding

representation by a local union rather than one based

in Ohio.

Ware followed up the meetings by mailing a letter to

each employee confirming Midwestern’s position that

the collective bargaining agreement with Local 836/100

was enforceable “until proven different by the NLRB” (a

hearing before the Board on Local 215’s unfair labor

practices charges was scheduled for January 20, 1998); that

Midwestern would consider any strike to be a violation

of the no-strike clause and hence unprotected by federal

labor law; and that Midwestern would terminate, discipline, or sue strikers. Shortly after this, Ware received

a letter from Local 836/100 disclaiming representation of

the Rockport drivers. This prompted Ware to contact

Local 215, and a short time later Ware met with Lewis

Smith, Local 215’s secretary-treasurer, and Joe DiMatteo,

Local 215’s business representative, to discuss the terms

of the collective bargaining agreement with Local 836/100

and possible settlement of the unfair labor practices

charges then pending before the Board. Ware made

known his beliefs that Local 836/100 had transferred its

representation of the Rockport drivers to Local 215, and
6 Nos. 02-2209 & 02-2566

that the contract with Local 836/100 “went with the transfer” and remained effective. By letter a few days later, Ware

offered to recognize Local 215 if the union agreed to the

terms in the agreement between Midwestern and Local

836/100, and if Local 215 withdrew its pending unfair

labor practices charges with the NLRB. Smith later called

Ware to follow up, but nothing was resolved.

The drivers met at Local 215 on January 13, 1998, a

week before the hearing on the union’s unfair labor practices charges. After listening to a progress report from

Smith and DiMatteo on their negotiations with Midwestern, several drivers, including Chris Means and Gerald

Fickas, complained of harassment and threats by the

company for expressing their willingness to strike. They

also complained that Midwestern had “shoved a local out

of Ohio down their throats,” and that the company continued to threaten them with the no-strike clause, even

though Local 836/100 had disclaimed representation. The

drivers then voted to strike, but DiMatteo persuaded

them to hold off initiating the strike pending the outcome

of a meeting the next day with Midwestern, and to allow

him to set the date of the strike. At the meeting the following day, the union and Midwestern exchanged initial

contract offers, and reached agreement on a few matters.

But they disagreed on major issues such as recognition,

pension terms, and duration of any contract, and at the

conclusion of the meeting Ware remarked that he believed that the parties were at impasse. Two days later,

DiMatteo informed the drivers that the strike would

begin on January 17. On that same day, Midwestern and

River City signed an informal settlement agreement

with the NLRB regarding the unfair labor practices charges

stemming from the June 2, 1997, meeting between Local

836/100 and the drivers.

The strike commenced as planned, with 26 employees

picketing and carrying signs declaring “On Strike, Unfair
Nos. 02-2209 & 02-2566 7

Labor Practices.” Local 215 also filed additional charges

with the Board, alleging unfair labor practices surrounding Ware’s statements and letters to the drivers in December 1997. Midwestern and River City then met with

Smith, DiMatteo, and a federal mediator to discuss settlement of the charges, but were unable to reach an agreement. Shortly after this, Midwestern and River City signed

another agreement with the NLRB remedying the unfair

labor practices of both June and November-December 1997,

although Local 215 was not a party to the agreement. The

Board’s Regional Director approved the settlement, which

contained a reservation of evidence provision permitting

relitigation of pre-settlement unfair labor practices for

the purpose of providing background evidence to determine whether Midwestern committed other unfair labor

practices.

The drivers remained on strike until March 27, when

Local 215 made an unconditional offer to return to work

on behalf of the drivers. But Midwestern rejected the offer

by declaring the strike an economic strike and refusing

to reinstate the striking drivers, which prompted Local

215 to file the unfair labor practices charges giving rise

to these appeals. After an investigation, the Board’s General Counsel issued a complaint alleging that Midwestern violated the NLRA by assisting and supporting Local 836/100 and recognizing it as a bargaining representative in the absence of uncoerced support of a majority

of employees; using threats of discharge or discipline to

coerce its employees to designate Local 836/100 as their

bargaining representative and to not engage in a protected strike; and failing to reinstate the striking employees immediately upon their unconditional offer to return

to work.

At the hearing before the administrative law judge

(“ALJ”), the Board sought to demonstrate that the drivers

were motivated to strike by the unfair labor practices
8 Nos. 02-2209 & 02-2566

1 Right-to-work laws prohibit labor-management agreements

from requiring union membership as a condition of employment.

E.g., Retail Clerks Int’l Ass’n Local 1625, AFL-CIO v.

Schermerhorn, 373 U.S. 746 (1963). Indiana repealed its right-towork statute in 1965. See Fort Wayne Educ. Ass’n, Inc. v. Goetz,

443 N.E.2d 364, 371 (Ind. App. Ct. 1982).

that had occurred during and after the June 1997 meeting

between former Local 836 and the drivers, and by

Teegarden’s and Ware’s later threats of termination or

discipline. Drivers Fickas, Means, Chris Webster, and

Robert Linendoll all testified that at the June meeting

with Kinman, Teegarden told them they would lose their

jobs if they did not sign the union authorization cards. The

ALJ credited the testimony of each driver, although she

assigned little weight to that of Means and Linendoll

because neither could recall specific details of the meeting. Teegarden also testified. He admitted taking attendance at the meeting, and testified that after taking

attendance he left the meeting for 45 minutes to allow

Kinman to speak, and that he returned only when one

of the drivers asked him to answer a question regarding

what would happen if the employees refused to sign the

union authorization cards. When queried about his answer, Teegarden asserted that he did not tell the employees they would lose their jobs, but rather only that by

signing the cards they were voting to join the union, “or

something to that effect,” and that they could not lose

their jobs because “Indiana is not a right-to-work state.”1

The ALJ did not fully believe Teegarden, however, because

to her he seemed unsure of his testimony, and was unable after three attempts to enunciate “Indiana is not a

right-to-work state,” even with coaching by counsel. Ware

also testified as to his negotiations with Kinman before

the meeting. Ware first stated that he reduced the addendum to the Local 836-Midwestern contract to writing
Nos. 02-2209 & 02-2566 9

on the day of the meeting. Later, under examination by

Midwestern’s counsel, he testified that he negotiated the

addendum with Local 836 only after Kinman faxed him

the signed authorization cards. The ALJ credited Ware’s

first version of events over his second. Based on this testimony, the ALJ found that Midwestern had unlawfully

assisted Local 836/100 in violation of 29 U.S.C. §§ 158(a)(2)

and (a)(3) by negotiating with and recognizing it without any indicia of uncoerced majority support by the

drivers, and by threatening the drivers with loss of their

jobs if they refused to sign the union authorization cards.

On the charge that the company violated the NLRA by

threatening to enforce the no-strike clause after Local

836/100 had disclaimed representation, Midwestern did

not seriously dispute the NLRB’s version of events, but

argued instead that Ware had held an honest belief that

the addendum constituted a valid contract between Midwestern and Local 836/100. The ALJ concluded that

Ware had no legitimate basis to hold that view, however,

finding that by the time he had expressed his belief that

the agreement had been “transferred” to Local 215, he

was aware that a majority of Midwestern’s Boonville,

Rockport, and Owensboro drivers had selected Local 215

as their bargaining representative, so that the basis for

collective bargaining with Local 836/100, the recognition

of the drivers’ representative, was absent. The ALJ also

found that Midwestern’s agreement with Local 836/100

was in any event a nullity because Midwestern had negotiated and entered into it without first attempting

to determine that its actions had uncoerced majority

support. As a consequence, the ALJ concluded that the

threats of termination or discipline at the meetings between the drivers and Teegarden and Ware and in Ware’s

December letters were attempts to interfere with, restrain,

or coerce the drivers in the exercise of their right to

choose a bargaining representative, in violation of 29 U.S.C.

§ 158(a)(1).
10 Nos. 02-2209 & 02-2566

Having concluded that Midwestern committed unfair

labor practices in June and November-December 1997, the

ALJ then found that the NLRA violations contributed to

the drivers’ decision to strike. The ALJ identified as

evidence of the employees’ motivation the timing of the

violations; the discussions of the drivers at the January

13, 1998, meeting at Local 215; the picket signs declaring

that the strike was in protest of unfair labor practices;

Midwestern’s refusal to recognize Local 215; and Ware’s

threats to enforce the no-strike clause in the discredited

Local 836/100 addendum. Although she recognized that

frustration with the slow pace of negotiations between

Midwestern and Local 215 likely played a part in the

drivers’ decision to strike, the ALJ nonetheless characterized the drivers’ frustration not as discontent with lack

of economic resolution, but as frustration with Midwestern’s refusal to resolve unfair labor practices. In sum, the

ALJ concluded that the strike was an unfair labor practices strike, and ordered the strikers immediately reinstated with back pay. A three-member panel of the Board

affirmed the order with minor modifications. Midwestern

Personnel Serv’s, Inc., 331 N.L.R.B. No. 50 (June 21, 2000).

II.

Now, almost two years later, the Board petitions for

enforcement of its order directing reinstatement of the

drivers with back pay, and Midwestern cross-petitions

for review. Because there is no limitation governing the

timeliness of petitions for enforcement or review of

NLRB orders apart from the equitable doctrine of laches,

and because the parties do not contend that these petitions should be barred by laches, our jurisdiction is secure.

Seafarers Int’l Union of North America, Atlantic, Gulf,

Lakes, & Inland Waters Dist., AFL-CIO v. NLRB, 895 F.2d

385, 386-87 (7th Cir. 1990). We must enforce the Board’s
Nos. 02-2209 & 02-2566 11

order if its factual findings are supported by substantial

evidence in the record as a whole and its legal conclusions have a reasonable basis in law. 29 U.S.C. § 160(e);

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

“Substantial evidence” means relevant evidence that a

reasonable mind might accept as adequate to support

the Board’s conclusions. Multi-Ad Serv’s, Inc. v. NLRB, 255

F.3d 363, 370 (7th Cir. 2001). We may not set aside

the Board’s conclusions simply because we might justifiably reach different conclusions had we considered the

matters de novo. NLRB v. United Ins. Co. of Am., 390 U.S.

254, 260 (1968). Thus, we defer to the ALJ’s findings

concerning witness credibility, and we will not disturb

those findings absent extraordinary circumstances such

as evidence of clear bias, utter disregard of sworn testimony, or crediting of testimony that is incredible on its

face. Multi-Ad, 255 F.3d at 370. Where two versions of

the same incident materially conflict, the ALJ’s credibility

determinations are entitled to deference. Id.; see also

NLRB v. Link-Belt Co., 311 U.S. 584, 596-97 (1941) (a

court of appeals lacks the authority to substitute its judgment for the Board’s judgment based on disputed facts).

Whether a strike is characterized as an unfair labor

practices strike (a strike caused or prolonged in part by

an employer’s unfair labor practices) or as an economic

strike (a strike precipitated by the inability of labor

and management to reach an agreement over wages, hours,

or working conditions) is vital insofar as the remedies

under the NLRA are concerned. Under Sections 8(a)(3)

and (a)(2) of the NLRA, 29 U.S.C. §§ 158(a)(3), (a)(1), unfair

labor practices strikers are entitled to immediate reinstatement with back pay once they unconditionally offer

to return to work, whereas economic strikers may be

permanently replaced. NLRB v. Int’l Van Lines, 409 U.S.

48, 50-51 (1972); Mastro Plastics Corp. v. NLRB, 350 U.S.

270, 278 (1956); Northern Wire Corp. v. NLRB, 887 F.2d
12 Nos. 02-2209 & 02-2566

1313, 1319 (7th Cir. 1989). An unfair labor practices

strike does not lose its character as such if economic

motives contribute to its cause, however; it remains an

unfair labor practices strike so long as the employees

are motivated in part by unfair labor practices. LaphamHickey Steel Corp. v. NLRB, 904 F.2d 1180, 1187 (7th

Cir. 1990); Northern Wire, 887 F.2d at 1319; Citizens Publ’g

& Printing Co. v. NLRB, 263 F.3d 224, 235 (3d Cir. 2001);

Dorsey Trailers, Inc. v. NLRB, 233 F.3d 831, 839 (4th

Cir. 2000). The character of the strike at issue here turns

on whether Midwestern unlawfully assisted Local 836/100

by engaging in collective bargaining with and recognizing

the union without first ascertaining whether an uncoerced

majority of the employees had freely selected it as their

bargaining representative, and by threatening employees with termination, discipline, or legal action under the

purported authority of the now-discredited collective

bargaining agreement between Midwestern and Local

836/100. We have little difficulty sustaining the Board’s

conclusions.

Cooperation between employers and labor unions is

both permissible and encouraged by the NLRA. But it is

an unfair labor practice when cooperation crosses the

line into domination or interference with the formation or

administration of a union, or contribution of financial

or other support to a union, with the effect of interfering

with the employees’ organizational rights guaranteed

by Section 7 of the NLRA, 29 U.S.C. § 157. 29 U.S.C.

§ 158(a)(2); Electromation, Inc. v. NLRB, 35 F.3d 1148,

1161-62 (7th Cir. 1994); Farmers Energy Corp. v. NLRB,

730 F.2d 1098, 1102 (7th Cir. 1984). Whether an employer actually intended to interfere with the employees’

selection of a bargaining representative, or whether employees actually felt coerced by their employer’s actions

does not matter—the gravamen of the violation is whether

the employer’s assistance reasonably tends to coerce the
Nos. 02-2209 & 02-2566 13

employees in the exercise of their organizational rights.

Link-Belt, 311 U.S. at 588; NLRB v. Joy Recovery Tech.

Corp., 134 F.3d 1307, 1313 (7th Cir. 1998); Farmers Energy,

730 F.2d at 1102. In determining whether managementlabor cooperation has crossed over from permissible cooperation to unlawful coercion, courts consider a confluence

of factors, with no one factor being dispositive. This nonexclusive list of factors includes whether the employer

solicited contact with the union; the rank and position

of the company’s solicitor; whether the employer silently

acquiesced in the union’s drive for membership; whether

the employer shepherded its employees to meetings with

a prospective union; whether management was present

at meetings between its employees and a prospective

union; whether the signing of union authorization cards

was coerced; and whether the employer quickly recognized the assisted union after the employees signed authorization cards yet exhibited prejudice against another

union selected by the employees. See, e.g., Int’l Assoc. of

Machinists, Tool & Die Makers Lodge No. 35 v. NLRB,

311 U.S. 72, 78-79 (1940); Farmers Energy, 730 F.2d

at 1102; NLRB v. Vernitron Elec. Components, Inc., 548

F.2d 24, 26 (1st Cir. 1977); Amalgamated Local Union

355 v. NLRB, 481 F.2d 996 (2d Cir. 1973).

Here, the Board found that Midwestern’s President,

Samuel Ware, personally solicited Local 836/100 and

entered into collective bargaining with it before any

effort had been made to determine whether a majority

of the drivers would have selected Local 836/100 as their

bargaining representative. A high-ranking manager,

James Teegarden, attended the meeting between Local

836/100 and the drivers. Although Teegarden was not

present in the room at all times during the meeting,

Teegarden took attendance, introduced the prospective

union representative to the drivers, made himself available to answer questions that should have been within
14 Nos. 02-2209 & 02-2566

the union representative’s ken, and suggested to the drivers that they would lose their jobs if they did not sign

the authorization cards. This constitutes substantial

evidence that the company was the impetus behind the

recognition of Local 836/100. Any agreement between

Midwestern and Local 836/100 concerning Midwestern’s

Indiana drivers was not a product of true collective bargaining and thus was not enforceable. See Int’l Ladies’

Garment Workers’ Union, AFL-CIO v. NLRB, 366 U.S. 731,

737 (1961). And because the agreement with Local 836/100

was unenforceable, threatening the drivers with termination or discipline under its no-strike clause was an attempt to interfere with, restrain, or coerce the employees

in the exercise of their freedom to choose Local 215 as

their bargaining representative, in violation of 29 U.S.C.

§ 158(a)(1). See J.C. Penney Co., Inc. v. NLRB, 123 F.3d

988, 993-94 (7th Cir. 1998); Northern Wire, 887 F.2d

at 1317.

Midwestern argues, however, that the Board’s findings

cannot stand because they were based solely on “selfserving” testimony or misrepresentations provided by

employees and union officials. The Board’s witnesses

were self-interested—substantial back pay is at stake—but

it cannot be said that Midwestern’s management had

no interest in the outcome. We thus understand Midwestern’s argument to be an attack on the ALJ’s decision

to credit the testimony of the drivers over that of Ware

and Teegarden. Normally we defer to the Board’s credibility determinations unless there is some extraordinary

reason why we should ignore them, for instance if those

findings are inherently incredible or patently unreasonable. See Beverly California Corp. v. NLRB, 253 F.3d 291,

294 (7th Cir. 2001); Multi-Ad, 255 F.3d at 370; Joy Recovery, 134 F.3d at 1312; NLRB v. Gold Standard Enters., Inc.,

607 F.2d 1208, 1211 (7th Cir. 1979). The ALJ credited the

testimony of the employees because she found that their
Nos. 02-2209 & 02-2566 15

testimony was largely consistent. In contrast, she did not

fully credit Teegarden because he appeared coached and

unsure of his testimony, and she did not credit all of

Ware’s testimony because he gave conflicting accounts of

when he drafted the contract between Midwestern and

Local 836/100, a key factor in determining whether true

collective bargaining between Midwestern and Local

836/100 had occurred. We see no extraordinary circumstances warranting that we disregard the ALJ’s credibility

findings.

The existence of prior unfair labor practices does not

mean that a subsequent strike is an unfair labor practices

strike, however; a causal connection must be proved. NLRB

v. Colonial Haven Nursing Home, Inc., 542 F.2d 691 (7th

Cir. 1976); Ryan Iron Works, Inc. v. NLRB, 257 F.3d 1, 8

(1st Cir. 2001); California Acrylic Indus., Inc. v. NLRB,

150 F.3d 1095, 1101 (9th Cir. 1998); Pirelli Cable Corp. v.

NLRB, 141 F.3d 503, 517 (4th Cir. 1998); Allied Mech.

Serv’s, Inc. v. NLRB, 113 F.3d 623, 626 (3d Cir. 1997);

Capitol Steel & Iron Co. v. NLRB, 89 F.3d 692, 698 (10th

Cir. 1996); Road Sprinkler Fitters Local Union No. 669 v.

NLRB, 681 F.2d 11, 20 (D.C. Cir. 1982). Midwestern

contends that no causal connection is present here, first

stressing that collective bargaining between it and Local

215 was at impasse shortly before the strike ensued, and

that the breakdown in bargaining over questions of wages

and pensions and the like was thus the real basis for the

strike. But Midwestern ignores its knowledge (through

Ware and Teegarden) that in November and December

1997 the drivers were contemplating a strike over Midwestern’s hasty recognition of Local 836/100 and refusal

to recognize Local 215, which by that time had also informed Midwestern by letter that it represented a majority of the drivers. Also, Midwestern does not seriously

dispute the testimony by drivers Chris Means and Gerald

Fickas that on January 13, at the meeting where the
16 Nos. 02-2209 & 02-2566

drivers voted to strike, they and other drivers had complained to Local 215 about Teegarden and Ware’s threats

of termination and discipline if the drivers decided to

strike for having “a local out of Ohio shoved down their

throat.” See Citizens Publ’g & Printing, 263 F.3d at 235;

Calex Corp. v. NLRB, 144 F.3d 904, 911 (6th Cir. 1998).

And that the strike did not ensue immediately after the

vote does not lessen its causal impact—the drivers held

off on initiating the strike at the suggestion of the union,

which wanted one more opportunity to persuade Midwestern to recognize it as the drivers’ bargaining representative.

Midwestern next contends that the strike could not

have been caused by the prior unfair labor practices

because the two prior unfair labor practices were “dead

issues” by the time the strike ensued. Midwestern bases

its argument on the facts that well before the strike

Local 836/100 had disclaimed its interest in the drivers

and that Midwestern and River City had reached an

informal settlement with the NLRB of all pending unfair

labor practices charges. As the Board points out, however,

neither of these events prompted Midwestern to recognize Local 215 as the drivers’ bargaining representative. Indeed, Midwestern continued to assert the validity

of the agreement with Local 836/100 right up to the time

when the drivers voted to strike.

Finally, Midwestern argues that all of the evidence

upon which the Board based its finding that the strike

was based on unfair labor practices was entirely selfserving and hence unreliable. For support, Midwestern

relies on our decision in Colonial Haven Nursing Home

and the Fourth Circuit’s decision in Pirelli Cable. In Colonial Haven, we concluded that many of the unfair labor

practices cited by the striking employees as their motivation to strike had occurred after they voted to strike, and

that the violations that occurred prior to the decision to
Nos. 02-2209 & 02-2566 17

strike were remote in time and relatively minor. 542 F.2d

at 705. In this case, however, all of the unfair labor practices occurred prior to the decision to strike and were not

relatively minor. See Northern Wire, 887 F.2d at 1321 n.3.

And although the prior unfair labor practices in this case

might be fairly remote in time, they were by no means

“dead issues.” The unlawful assistance immediately fostered discontent, which led to Local 215’s organizing efforts and its October request for recognition, as well

as the November and December meetings in which the

drivers were threatened with termination or discipline. The

basis of Midwestern’s threats—its view that the Local

836/100 agreement had transferred to Local 215—played

a large part in its refusal to recognize Local 215 and its

declaration of impasse. In short, there is a patent causal

connection present in this case that Colonial Nursing

lacked.

Pirelli Cable is equally distinguishable. There, the

employees initiated a strike after the company demanded

economic concessions. The evidence that the strike was

motivated partly by unfair labor practices was provided

solely by three union officials, whose testimony strongly

suggested that the unfair labor practices charges were

an attempt to shield the union’s members from the consequences of engaging in a economic strike. Moreover,

the Board lacked evidence of the actual sentiment of the

employees, and the claimed unfair labor practice was

weak (indeed, the court of appeals concluded that no

violation had occurred). 141 F.3d at 517-18. In contrast, there was credible evidence before the Board in

this case of the employees’ sentiment. There was also

evidence that the drivers’ decision to strike was not

made only after talks between the union and the company broke down. And unlike Pirelli Cable, the prior

unfair labor practices committed by Midwestern were

substantial.
18 Nos. 02-2209 & 02-2566

III.

For these reasons we conclude that substantial evidence in the record as a whole supports the Board’s conclusions that the strike was an unfair labor practices

strike. Because an employer’s refusal to reinstate unfair

labor practices strikers upon their unconditional offer to

return to work is itself an unfair labor practice in violation of Sections 8(a)(3) and (a)(1) of the NLRA, 29 U.S.C.

§§ 158(a)(3), (a)(1), see Lapham-Hickey Steel, 904 F.2d

at 1187; Northern Wire, 887 F.2d at 1319, we ENFORCE the

order of the Board directing Midwestern to reinstate

the striking drivers with back pay, and DENY Midwestern’s petition for review.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-11-03