Ryan Iron Works, Inc. v. National Labor Relations Board

*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.

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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 twenty-
five years. The most recent CBA between the parties was in effect from
September 11, 1992, to September 10, 1995. The events giving rise to

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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

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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

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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 good-
faith 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

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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

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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

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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.

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