957 F.2d 1467 (7th Cir. 1992), 90-2140, N.L.R.B. v. Augusta Bakery Corp.

Docket Nº:90-2140.
Citation:957 F.2d 1467
Case Date:March 24, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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957 F.2d 1467 (7th Cir. 1992)




No. 90-2140.

United States Court of Appeals, Seventh Circuit

March 24, 1992

Argued Nov. 1, 1991.

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Charles P. Donnelly, Jr., Washington, D.C., Elizabeth Kinney, Chicago, Ill., Aileen A. Armstrong, Frederick Havard (argued), William A. Baudler, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., for petitioner.

A. Eric Arnold (argued), Zion, Ill., for respondent.

Before CUDAHY and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FLAUM, Circuit Judge.

The National Labor Relations Board (Board) seeks enforcement of an order against Augusta Bakery Corporation (Augusta). We grant enforcement.


We briefly set forth the undisputed facts before turning to our review of the Board's determination. Augusta is a family-owned bakery located in Chicago. During the relevant time period, its production employees were represented by Local Union No. 1, Bakery, Confectionary and Tobacco Workers' International Union of America (Union). On November 20, 1985, after efforts to reach a new bargaining agreement proved unsuccessful (the previous agreement had expired on May 31, 1985), the employees initiated an economic strike against Augusta. Using replacement employees, Augusta continued operating during the strike.

On March 17, 1986, Augusta's counsel, Kathy Arnold, sent notice to the Union that Augusta planned to withdraw recognition because a majority of its employees had signed a letter stating that they no longer desired Union representation. 1 On March 24, the Union--through its counsel, Jacob Pomeranz--sent two letters to Augusta: the first identified 12 striking employees and stated that "said employees and the Union are offering unconditionally to immediately return to work"; the second demanded that Augusta "return to negotiations immediately so as to reach agreement on a collective-bargaining contract," and questioned Augusta's good faith doubt regarding the Union's majority status. The letters were sent by overnight courier and delivered together to Arnold at her home on March 25.

Two days later, on March 27, Arnold sent letters to the Union and to each of the dozen bakers. The letter to the Union expressed doubt over whether the offers to return were, indeed, "unconditional," given that the other letter sent on the same date demanded a return to the bargaining table, and outlined Augusta's views of the reinstatement rights of the dozen employees involved. Only one could be immediately reinstated. As to the others, Augusta asserted that two had engaged in strike misconduct; three had abandoned their employment by applying for and/or receiving pension benefits; and six had been permanently replaced. Augusta stated that no positions were available, and that the names of the six who had been replaced would be put on a preferential hiring list. The letters to the individual strikers apprised them of their status with the company.

The Board, upholding the determination of the Administrative Law Judge (ALJ), held that Augusta had violated § 8(a)(1) and (3) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), (3), by refusing to reinstate 11 of the 12 striking employees subsequent to the March 24 offer to return,

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which the Board found to be unconditional. The Board's order requires, among other things, that Augusta offer the 11 employees immediate and full reinstatement, with back pay. 2


We have jurisdiction to consider the Board's petition for enforcement pursuant to 29 U.S.C. § 160(e), which also governs our standard of review. We must uphold the Board's determination if its factual findings are supported by substantial evidence in the record as a whole and its legal conclusions have a reasonable basis in the law. Id.; Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). Substantial evidence in this context means "such relevant evidence as a reasonable mind might accept as adequate to support" the Board's determination. Roadmaster Corp. v. NLRB, 874 F.2d 448, 452 (7th Cir.1989) (quoting Universal Camera, 340 U.S. at 477, 71 S.Ct. at 459). This standard of review is well established; it "does not allow us to dabble in factfinding, and we may not displace reasonable determinations simply because we would have come to a different conclusion if we reviewed the case de novo." NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506, 513 (7th Cir.1991); see also NLRB v. United Ins. Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1314 (7th Cir.1991) (Board's application of the law to particular facts also reviewed under substantial evidence standard), petition for cert. filed (Dec. 23, 1991).

The standard "is not modified in any way when the Board and the ALJ disagree as to legal issues or derivative inferences made from the testimony." Weather Shield Mfg., Inc., Millwork Div. v. NLRB, 890 F.2d 52, 57 (7th Cir.1989). It is the independent validity of the Board's order that is under review. Id. The scope of our review is narrow; we "must uphold the legal conclusions of the Board unless they are irrational or inconsistent with the National Labor Relations Act." Aqua-Chem, Inc., Cleaver-Brooks Div. v. NLRB, 910 F.2d 1487, 1490 (7th Cir.1990) (citations omitted), cert. denied, --- U.S. ----, 111 S.Ct. 2871, 115 L.Ed.2d 1037 (1991). Additionally, we may not disturb the Board's remedial order "unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233 (1964) (quoting Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943)).

We have expounded upon the standard of review in some detail, for this is a case in which we must keep in mind, as we previously have acknowledged, that "[t]he faithful application of these principles requires a great deal of judicial restraint." U.S. Marine, 944 F.2d at 1314.


It is well settled that economic strikers retain their status as employees under the Act, and are entitled to full reinstatement at the conclusion of the strike. 29 U.S.C. § 152(3); NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 545, 19 L.Ed.2d 614 (1967). An employer may not retaliate against striking employees by refusing to reinstate them upon their unconditional offers to return to work; such retaliation would discourage employees from exercising their guaranteed rights to organize and strike. Fleetwood Trailer, 389 U.S. at 378, 88 S.Ct. at 546. Accordingly, an employer must reinstate the returning strikers to their former positions unless the employer can show that its action was due to "legitimate and substantial business justifications," in which case it may refuse to reinstate the economic strikers. Id. (quoting NLRB v.

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Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027 (1967)).


We first consider whether the offer to return was unconditional. The Board adopted the ALJ's determination that the two letters the Union sent to Arnold on March 24 were unrelated, and that one contained an unconditional offer to return to work. The Board's finding of an unconditional offer is a predominently factual determination, which we must uphold if supported by substantial evidence. Augusta bears the burden of showing that the offer to return was not unconditional. Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1107 (1st Cir.1981); NLRB v. Okla-Inn, 488 F.2d 498, 505 (10th Cir.1973).

In support of its claim that the offer was conditional, Augusta cites International Union, Allied Industrial Workers v. NLRB, 411 F.2d 249 (7th Cir.1969), in which we enforced a Board determination that strikers' reinstatement requests were conditioned on the employer's agreement to resume bargaining with the union. Id. at 251. In that case, the union had informed the company on July 17 that the strike would be "terminated" on July 20 and, in the same letter, demanded resumption of bargaining--a matter that was subject to a then-pending unfair labor practice charge. On July 20, 61 strikers sent individual but identical letters to the employer which stated, "I make this application for reinstatement with the understanding that [the employer] will continue to recognize and commence bargaining with my duly designated bargaining representative...." We upheld the Board's conclusion that the offer to return was conditional, noting that the company had expressly announced its intent to comply with the determination reached through the administrative processes. 3 Id. at 251.

Augusta contends that the Union's two March 24 letters likewise should be construed "as a single, conditional offer," Resp't Br. at 10, the condition being Augusta's return to the bargaining table. Since the offer was not unconditional, the company argues, it did not commit an unfair labor practice in refusing to reinstate the workers. 4 According to Augusta, the simultaneous timing of the letters indicates that the offer was conditional, and a reading which separates the offer from the bargaining request because they were written on separate pieces of paper "is elevating form over substance." Resp't Br. at 13.

The Board rests its determination on the opposite assertion: the Union's decision

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to distinguish, by way of separate letters, the return-to-work offer from the bargaining demand was a way to ensure, "in form and substance," that...

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