Heritage Container, Inc.

National Labor Relations Board - Board Decisions

Jul 6, 2001

334 N.L.R.B. 455 (N.L.R.B. 2001)

HERITAGE CONTAINER, INC. 455
Heritage Container, Inc. and Steel, Paper House,
Chemical Drivers and Helpers Local 578, Inter-
national Brotherhood of Teamsters, AFL–CIO.
Cases 21–CA–32412, 21–CA–32451, and 21–CA–
32494
July 6, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND WALSH
On October 19, 1999, Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief and limited
exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
In Levitz, 333 NLRB 717 (2001), which issued subse-
quent to the judge’s decision, the Board overruled Cela-
nese Corp., 95 NLRB 664 (1951), and its progeny insofar
as they permitted an employer to withdraw recognition
from an incumbent union on the basis of a good-faith
doubt of the union’s continued majority status. The Lev-
itz Board held that “an employer may unilaterally with-
draw recognition from an incumbent union only where
the union has actually lost the support of the majority of
the bargaining unit employees.” Id. However, the Board
also held that its analysis and conclusions in that case
would only be applied prospectively; “all pending cases
involving withdrawals of recognition [will be decided]
under existing law: the ‘good-faith uncertainty’ standard
as explicated by the Supreme Court” in Allentown Mack
Sales & Service v. NLRB, 522 U.S. 359 (1998). Id. In
addition, the Board stated in Levitz that its analysis was
limited “to cases where there have been no unfair labor
practices committed that tend to undermine employees’
support for unions.” Id. at fn. 1.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The General Counsel, in limited exceptions, sought, inter alia, the
inclusion in the judge’s recommended Order of the January 13, 1998
date, of the Union’s unconditional offer on behalf of the strikers to
return to work. We find merit in this exception and have revised the
recommended Order accordingly.
Here, the judge found, and we agree, that the Respon-
dent may not rely on the antiunion petition it received to
withdraw recognition from the Union because the Re-
spondent committed unfair labor practices that reasonably
tended to contribute to employee disaffection from the
Union. We also agree with the judge that even if the em-
ployee petition were not tainted by the Respondent’s un-
remedied unfair labor practices, the Respondent still
would not be legally entitled to withdraw recognition
from the Union. In this connection, the judge found that
the bargaining unit consisted of 69 employees, but only
24 unit employees signed the petition, 11 short of a ma-
jority. Such a showing is insufficient to establish a good-
faith reasonable uncertainty as to the Union’s continuing
majority status. See Levitz, supra. For these reasons, we
conclude, in agreement with the judge, that the Respon-
dent violated Section 8(a)(5) and (1) of the Act by with-
drawing recognition from the Union.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Heritage
Container, Inc., Riverside, California, its officers, agents,
successors, and assigns, shall take the action set forth in
the order as modified.
1. Substitute the following for paragraph 2(c).
“(c) Make whole all unfair labor practice strikers to
whom the Respondent failed to offer reinstatement upon
their unconditional offer to return to work on January 13,
1998, for any loss of earnings which they may have suf-
B 651 (2000).
3 As Member Hurtgen stated in his concurring opinion in Levitz, su-
pra, he does not embrace the new rule of that case. He agrees with his
colleagues that pre-Levitz law should be applied in the instant case.
Applying that law, he adopts the judge’s finding that the Respondent
could not rely on the December 12, 1997, employee petition to establish
a good-faith uncertainty of the Union’s majority status. In doing so,
Member Hurtgen relies solely on the facts that: (1) the employees who
signed the petition represented substantially less than a majority of the
unit; (2) Respondent provided no evidence, other than the petition, of the
Union’s loss of majority support. Member Hurtgen finds that a petition
signed by substantially less than a majority of employees, standing
alone, is inadequate to support a good-faith uncertainty about a union’s
majority status. Allentown Mack, supra.
4 In light of this conclusion, it is unnecessary to address the judge’s
alternative rationale that it was the Respondent’s burden to establish its
defense by “clear, cogent, and convincing” evidence and that the em-
ployee petition lacked probative value because the signatures had not
been authenticated.
There are no exceptions to the judge’s grant of an affirmative
bargaining order to remedy the Respondent’s unlawful withdrawal of
recognition. We therefore find it unnecessary to pass on whether a
specific justification for that remedy is warranted. Cf. Raven
Government Services, 331 NLR
334 NLRB No. 65
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 456
fered, in the manner set forth in the remedy section of
this decision.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT fail and refuse to reinstate unfair labor
practice strikers who were not permanently replaced prior
to conversion of the strike from an economic strike.
WE WILL NOT deal directly with striking employees.
WE WILL NOT threaten striking employees with job
loss or offer them higher wages to return to work.
WE WILL NOT withdraw recognition from the Union
in the absence of a good-faith bona fide doubt of the Un-
ion’s majority status.
WE WILL NOT threaten to fire or actually fire a strik-
ing employee for being on strike.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer all employees engaged in the unfair la-
bor practice strike who were not permanently replaced
prior to December 6 or 7, 1997, and were not subsequently
offered reinstatement by us, immediate reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges, discharging if nec-
essary any replacements hired on or after December 6 or 7,
1997.
WE WILL place the remaining former strikers who
were not replaced prior to December 6 or 7, as well as
those former strikers who were permanently replaced prior
to December 6 or 7, 1997, for whom no employment is
immediately available, on a preferential hiring list in ac-
cordance with their seniority or other nondiscriminatory
practice and offer them employment before any other per-
sons are hired or on the departure of any replacements
hired before December 6 or 7, 1997.
WE WILL make whole all unfair labor practice strikers,
who were not permanently replaced prior to December 6
or 7, 1997, and to whom we failed to offer reinstatement
on their unconditional offer to return to work on January
13, 1998, for any loss of earnings which they may have
suffered, with interest.
WE WILL, on request recognize and bargain with Steel,
Paper House, Chemical Drivers and Helpers Local 578,
International Brotherhood of Teamsters, AFL–CIO as the
exclusive collective-bargaining representative of the unit
employees and, if an understanding is reached, embody
the understanding in a signed agreement. The appropriate
unit is:
All production and maintenance employees employed
by US at OUR facility located at 4777 Felspar Street,
Riverside, California; excluding all office clerical
employees, professional employees, guards, watch-
men, and supervisors as defined in the Act.
HERITAGE CONTAINER, INC.

Ariel Sotolongo, Esq., for the General Counsel.
Jack S. Sholkoff and Adin Goldberg, Esqs. (Whitman, Breed,
Abbott & Morgan), of Los Angeles, California, for the Re-
spondent.
Lourdes M. Garcia, Esq. (Wohlner, Kaplon, Phillips, Young &
Barsh), of Encino, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Los Angeles, California, on
April 19–21, 1999,1 pursuant to a consolidated complaint is-
sued by the Regional Director for the National Labor Relations
Board for Region 21 on December 2, 1998, and which is based
on charges filed by Steel, Paper House, Chemical Drivers and
Helpers Local 578, International Brotherhood of Teamsters,
AFL–CIO (the Union) on December 4 (21–CA–32412), De-
cember 18 (21–CA–32451), and on January 16, February 13,
and October 1, 1998 (21–CA–32494), original, first amended,
and second amended charge respectively. The complaint al-
leges that Heritage Container, Inc. (Respondent), has engaged
in certain violations of Section 8(a)(1)(3) and (5) of the Na-
tional Labor Relations Act (the Act).
Issues
I. Whether Respondent acting through its supervisor, by-
passed the Union, the collective-bargaining representative, and
dealt directly with employees then engaged in an economic
strike, with respect to mandatory subjects of negotiations.
II. If so, whether the strike was subsequently converted to an
unfair labor practice strike.

1 All dates refer to 1997 unless otherwise indicated.
HERITAGE CONTAINER, INC. 457
III. Whether Respondent unlawfully withdrew recognition
from the Union.
IV. Whether the Union made an unconditional offer, for
striking employees to return to their former positions of em-
ployment, and if so, whether Respondent has failed and refused
to reinstate the employees to their former positions of employ-
ment.
V. Whether Respondent, through its supervisors, has en-
gaged in certain unlawful acts such as interrogations, threats,
and promises of benefits.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of the General
Counsel and Respondent.
On the entire record of the case, and from my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that it is a California corporation engaged
in the business of manufacturing craft corrugated containers
and having a facility located in Riverside, California. It further
admits that during the past year ending December 31, in the
course and conduct of its business it has sold and shipped goods
valued in excess of $50,000 to other enterprises located within
the State of California, each of which other enterprises, during
the same period of time, sold and shipped from its California
locations, goods valued in excess of $50,000 direct to points
outside the State of California, or purchased or received at its
California locations, goods valued in excess of $50,000 directly
from points outside the State of California. Accordingly, it
admits, and I find, that it is an employer engaged in commerce
and in a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admitted at the hearing, and I find, that Steel,
Paper House, Chemical Drivers and Helpers Local 578, Inter-
national Brotherhood of Teamsters, AFL–CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act (Tr.
58).
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background/undisputed facts
On or about July 7, 1995, the Union was certified as the ex-
clusive collective-bargaining representative of a unit of Re-
spondent’s employees described as follows:
All production and maintenance employees employed by Re-
spondent at its facility located at 4777 Felspar Street, River-
side, California; excluding all office clerical employees, pro-
fessional employees, guards, watchmen, and supervisors as
defined in the Act.
Shortly after the Union was certified, the parties began nego-
tiations to reach a collective-bargaining agreement. The Union
was represented in negotiations by Lawrence Casey, a business
representative and the General Counsel’s witness. He in turn
was assisted at different times by one or more other union offi-
cials and an advisory bargaining committee of Respondent’s
employees: Juan Almaraz (witness for the General Counsel),
Reynaldo Ayala, Martin Bermejo, Moises Michel, and later on,
Carlos Cervantes (replacement for Ayala). At the end of the
first year of bargaining, without a contract, the Union requested
the assistance of a Federal mediator. The mediator assisted the
parties for approximately 1 more year, but still no contract re-
sulted.
As a strike became a possibility, Richard Gabriel, Respon-
dent’s president and owner, prepared a document which he
circulated to employees with their paychecks. The document
reads as follows:2

TO: All Employees
FROM: Richard Gabriel
DATE: October 14, 1997
SUBJECT: Company Matters

Many of you know that Heritage Management has
made a final offer to Local 578. We think this is more
than a fair offer. Ultimately, you can be the judge of that.
We understand that in considering whether to approve
and accept this offer, Local 578 may ask you to authorize
a strike against Heritage. We certainly are not predicting
whether a strike will take place; ultimately, it is not in our
hands in any way. However, there are some things you
should know that could affect you directly if you were to
go on strike. We want you to be aware of these facts.

While on Strike:

1. You do not get paid;
2. Your insurance and other related benefits could be
canceled;
3. You could be permanently replaced in your job;
—as such you could go on a preferential hiring list,
available for only those jobs which later became open, if
any;
4. You would not be eligible for unemployment bene-
fits or other assistance.

Also, you should know that:

5. You are not required to vote in favor of a strike;
6. You have the right to cross a picket line to go to
work during a strike;
7. The Company has an absolute right to operate and
fully continue in business during a strike.
We hope that you keep these rights and facts in mind
when making these decisions. [R Exh. 2.]

Notwithstanding Respondent’s memo above, in late October or
November, employees voted to reject Respondent’s last, best,
and final offer and to authorize a strike.
An economic strike began on December 2 with a majority of
Respondent’s 55 unit employees vowing to remain out until
Respondent agreed to a collective-bargaining agreement. Two

2 Although Respondent’s work force is all or mostly Spanish-
speaking, the document apparently was never translated into Spanish.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 458
shifts of pickets began walking at Respondent’s premises with
signs stating “On Strike Against Heritage Container, Teamsters,
L. 578.”
Approximately 10–15 of Respondent’s unit employees did
not join the strike. Respondent temporarily suspended its night
shift, began hiring permanent replacements and continued
scaled-back operations. After about 3 weeks, only 15 strikers
were left.
2. Background/disputed facts
The General Counsel called four bargaining unit employees
who testified that they had been called or contacted during the
strike by a company supervisor named Jaime Michel, who was
also called by the General Counsel as an adverse witness.
a.
The first witness, Francisco (Poncho) Villa, is now a night-
shift supervisor and has been so employed for about 1 year. On
the evening of December 3, the second day of the strike, Villa,
then a striker, received a phone call from Michel, then a day-
shift supervisor. Villa gave two versions of the conversation.
At hearing, he testified that Michel said that if he wanted to
return to work, a position was available and he was needed.
When Villa expressed reluctance to return until the strike was
over, Michel added if he didn’t return he would be replaced.
Villa denied that Michel promised him a raise to return to work.
Like others who were called by Michel, Villa reported the
remarks to Casey and within a day or so, wrote on a document
a somewhat different version of Michel’s call: “I received a
phone call from Mr. Michel on 12/4/97, and he told me that if I
did not work I would be fired and if I worked, I would get a
good raise and not to tell anybody” (Tr. 151; GC Exh. 8). At
the hearing, Villa claimed that he wrote the statement because
of what others had written, not because it was true. I don’t
believe Villa as to his disavowal of his statement. To the extent
his testimony differs from his written statement, I credit his
written statement which was more recent and more consistent
with other witnesses and written before Villa had a motive to
shade his testimony to protect his employer.
A second striker called was Oscar Paizano who expressed his
reluctance to be a witness because he “didn’t want to have
problems with the company. [The witness] is happy with them
[and he] hasn’t had any problems since [he] went back to them
and [they—witness and company] have understood each other
very well.” (Tr. 170.) Like Paizano, I also understand how the
world works, and I credit his written statement to the extent it
differs from his testimony at hearing. First, the testimony, Pai-
zano was called by Michel on the evening of December 3 and
was told that if he returned to work, he would be given
“things,” and that the strikers had quit. If he didn’t return, Mi-
chel said, Paizano would be replaced. Like the prior witness,
Paizano expressed reluctance to return while his coworkers
were still on strike. Michel concluded by saying he was only
calling those who the boss thought were on his side. Two
weeks after Paizano returned to work, he was given a raise in
pay.
On December 4, Paizano wrote “nobody forced me to write
this. [Michel] called me yesterday, Wednesday, December 3
and told me that if I went back to work he would pay me what I
wanted, that only he would call the ones that the owner thought
were okay. And that . . . all the ones that were outside they had
already quit since they went on strike. But if I wanted to go
back, that I was going to be given many things” (Tr. 177–178;
GC Exh. 8).
A third striker named Gerardo Buenrostro testified that he
too was called by Michel about 8 p.m. on December 3 and was
asked, Mr. Richards (referring to owner Richard Gabriel, wit-
ness for Respondent) says, do you want to work. The witness
asked if his coworkers were included but Michel said no, he
was only calling Buenrostro. Michel added that Richard said
that if I went back to work he was going to give me a good
raise, but if he didn’t go back, the witness would lose his job.
Michel concluded by telling Buenrostro not to tell anyone they
had talked. Buenrostro promised to think it over.
Buenrostro did not write a statement out about the call from
Michel. However, now that he was back to work, and having
received two significant hourly pay raises since returning
($1.15 plus $.50 later), Buenrostro seemed determined to at-
tempt to please everyone with his testimony. For example, on
cross-examination, the witness reiterated that Michel had said
he would lose his job if he didn’t go back; Michel said “fired,
terminated” (Tr. 197). Later in cross-examination, the same
question was asked about what Michel had said. This time
Buenrostro caught the ball from company counsel, and as if by
magic, Michel now told the witness he would be “replaced” if
he didn’t return to work (Tr. 201). Undaunted, the General
Counsel decided that he too should attempt a feat of magic: Q.
“. . . Did [Michel] use the word fire or terminated or did he use
the word replace?” A. “I think he said I was just going to loose
my job, I don’t remember exactly, the word” (Tr. 204). Since
the lawyers had waded into this issue, it was only fair that I too
should have a crack at the witness. Q. “. . . did Michel say if
you did not come back to work, you would be fired or termi-
nated or did he say if you do not come back to work you will be
replaced?” A. He said I was going to be fired or replaced,
loose my job” (Tr. 208). Buenrostro was not successful in
pleasing everyone and he certainly didn’t please himself; I find
that Michel told him, if he didn’t come back he’d be fired, or
would loose his job, just as he told the two prior witnesses.
After Buenrostro reported the call to Casey as the others had
done, Casey asked him to go with Juan Almaraz,3 also a striker
and Michel’s brother-in-law and call Michel at a public phone
to find out what was going on. Almaraz reached Michel by
phone on December 3 and asked him if he had called Buenros-
tro and Michel said he had. Almaraz asked him why he had
done that and Michel explained to his brother-in-law that he
was calling because Richard [Gabriel] told him to call the guys.
When Almaraz asked who Michel had called, Michel answered

3 Almaraz had more fluency with English than the other strikers.
While the General Counsel’s other striker witnesses testified through
the interpreter, Almaraz attempted to testify without the interpreter. As
matters turned out, he would require the services of the interpreter from
time to time during his testimony. In any event, he would frequently
interpret himself for Casey during the strike. Almaraz appeared to be
viewed by other strikers as a leader and liaison to English-speaking
union officials.
HERITAGE CONTAINER, INC. 459
that he had called Rene Claros, Ismael Alvarez, Samuel
Chaves, Onofre Salvatierra, and Francisco Villa (of this group,
only Villa testified). Almaraz concluded by telling Michel that
it was wrong for him to be calling strikers with the message in
question and Michel promised not to do it anymore.
Within 1–2 days after Almaraz made the phone call to Mi-
chel, Michel was driving out of work through the picket line
when he called to Almaraz, “Brother-in-law, what are you do-
ing, you got family and you are loosing money. I don’t want
you to loose everything.” Then Michel assured Almaraz that he
was telling him this “as a friend and not for the company.”
The General Counsel called Michel as an adverse witness be-
fore calling the four strikers referred to above. Michel’s testi-
mony began falsely and continued in that vein. His testimony
was preposterous and fantastic; I believed hardly a word of it.
Michel is and was a statutory supervisor for all times material
to this case. He has worked for Respondent for about 10 years.
First, Michel denied initiating any calls to strikers, but said that
several had called him. To the extent he made calls during the
strike, he was supposedly only returning calls placed to his
home when he wasn’t there and responding to the messages left
with his wife. This was false testimony as Villa, Paizano, and
Buenrostro all testified they had never called Michel at that
time. Continuing his deception, Michel testified the calls all
related to questions about how the strikers could get their pay-
checks or procedures for crossing the picket line to return to
work early or questions regarding vacation time. Not a single
witness was called by Respondent to corroborate Michel re-
garding these supposed calls to Michel’s home. Michel was
never called back as Respondent’s witness to address the phone
conversation with his brother-in-law Almaraz, as Buenrostro
listened to Almaraz’ side of the conversation.
b.
Once Casey had received reports regarding Michel’s phone
calls, he contacted union attorneys who immediately filed an
unfair labor practice (ULP) charge against Respondent. Then
on December 6 or 7, Casey convened an ad hoc meeting of all
strikers present on the picket line about 3:30 p.m. (This time
was chosen to involve the maximum number of pickets from
the first shift just finishing and the second shift just beginning.)
About 35 to 50 pickets were present to hear Casey who ad-
dressed them from the back of a pickup truck. Speaking in Eng-
lish with Almaraz translating, Casey explained what Michel
had done—to those few who by then were not aware of his
phone calls to strikers—and recommended that the strikers vote
to change the status of the strike to ULP strike, since it was
illegal, according to Casey, to try to convince strikers to return
to work, without going through the Union, the certified bargain-
ing representative. Casey added that union attorneys had al-
ready filed charges with the NLRB. A few questions were
raised such as whether ULP strikers could still collect strike
benefits, answer, yes. Other questions dealt with the meaning
of a ULP strike and Casey explained that it was to strikers’
advantage, as they couldn’t arbitrarily be replaced. Strikers
voted for a conversion to ULP strike by raising their hands. All
but two did and they merely abstained but did not vote against
the ULP strike.4
After this vote, all picket signs were changed to read, “Heri-
tage Container, Unfair to Teamsters L. 578.” Then on Decem-
ber 9, the Union sent a letter to the employer which reads as
follows:

Mr. Richard Gabriel
President
Heritage Container
4777 Felspar Street
Mira Loma, Ca. 91752

Dear Mr. Gabriel:

This is to advise you that Teamsters Local 578 has
converted the current economic strike to an unfair labor
practice strike as a result of the numerous unfair labor
practices recently committed by Heritage Container, Inc.
As you are well aware, employees on strike may not be
permanently replaced by employees hired to replace them
during the pendency of an unfair labor practice strike.

Sincerely,

/s/ Lawrence Casey
Lawrence Casey
Business Agent
[GC Exh. 3.]

As matters turned out, Respondent ignored the Union’s letter
because on December 31, it claimed to have received objective
evidence which caused it to have a bona fide doubt of the Un-
ion’s majority status. The nature of this evidence and the issues
surrounding it will be discussed below.
B. Analysis and Conclusions
1. Alleged ULP committed by Michel
Respondent’s answer admits that Michel is a statutory super-
visor and I find that for all times material to this case Michel
functioned in that capacity. It is well settled that a 2(11) super-
visor of an employer is a 2(13) agent of that employer. Excel
DPM of Arkansas, Inc., 324 NLRB 880 fn. 2 (1997). Because
Michel is Respondent’s agent, Michel’s acts and statements are
imputable to Respondent; that is, Respondent is responsible for
them. Atlas Minerals, 256 NLRB 91, 96 (1981). In his state-
ments to employees over the phone, Michel claimed in some
cases, to be acting under specific orders of Richard Gabriel;
both Gabriel and his son Thomas Gabriel denied that was the
case. I need not decide whether the Gabriels or their supervisor
is telling the truth. Respondent is responsible for what he did,
regardless.

4 Almaraz also testified about a second meeting at the home of a
striker in January 1998, the subject of which supposedly was the con-
version of the strike to a ULP strike. Since by this time, the strikers
had already voted about a month before, the picket signs had been
changed and notices had been sent to Respondent, I don’t know what to
make of this alleged second meeting; however, even if it occurred, it
was merely duplicative of the picket line meeting and did not impact
any issue in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 460
I have already recited in detail what Michel did. By calling
strikers and soliciting them to return to work using both prom-
ises of more money and threats of job loss, Michel, as agent for
Respondent, engaged in a bypass of the Union and direct deal-
ing with bargaining unit employees. Accordingly, I find that
Respondent violated Section 8(a)(1) and (5) of the Act. Atlas
Transit Mix Corp., 323 NLRB 1144, 1150 (1997); and
Gloversville Embossing Corp., 297 NLRB 182, 187–190
(1989). See also Naperville Ready Mix, Inc., 329 NLRB 174,
184 (1999). Compare SCA Services of Georgia, 275 NLRB
830, 836 (1985).
I also agree with General Counsel (Br. 13), that Michel’s
statement to strikes that they would loose their jobs if they did
not return to work and by Michel referring to those on the
picket line as employees who had already lost their jobs, Re-
spondent violated Section 8(a)(1). In Gloversville Embossing
Corp., supra, the Board explained,

Although an employer may permanently replace economic
strikers, it cannot terminate the employment relationship be-
cause of the strikers’ protected activities. . . . the unlawful dis-
charge of strikers is “a blow to the very heart of the collective
bargaining process” and “leads inexorably to the prolongation
of a dispute.” [Citation omitted.]

In this case, it appears that Richard Gabriel approved of Mi-
chel’s statements; consider Gabriel’s testimony; Q. (Judge). . .
“your position . . . is that [Almaraz] quit?” A. “He walked off
the job. That’s my position.” Q. On the strike you mean?” A.
Yes . . . what I know from my position is that when someone
walks off the job, they have surrendered their position” (Tr.
348). See Vanguard Tours, 300 NLRB 250, 254 (1990) (re-
spondent violated Section 8(a)(1) by effectively discharging
some strikers by telling them they were considered to have
quit).
The misinformation/disinformation conveyed to strikers by
Michel misstated strikers’ Laidlaw5 rights and violated Section
8(a)(1) of the Act. See Gibson Greetings, 310 NLRB 1286,
1287 (1993), enf. denied 53 F.3d 385 (D.C. Cir. 1995).
2. Alleged conversion of economic strike to ULP strike
In Developing Labor Law (3d ed. vol. 2 1992), pp. 1102–
1103, the author states the applicable principles of law:

A strike which is economic at its inception may be
converted into an unfair labor practice strike by an em-
ployer’s subsequent commission of unfair labor practices.
Statements made by the employer to its striking employees
regarding their replacement or reinstatement may provide
the unfair labor practices which later become determina-
tive as to whether the employees are unfair labor practice
or economic strikers and whether they are entitled to rein-
statement. Strikers may also be entitled to reinstatement
as unfair labor practice strikers if the employer commits
unfair labor practices that have the effect of prolonging an
economic strike. However, there must be a causal connec-

5 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969).
tion between the unfair labor practice and the prolongation
of the strike. [Citations omitted.]

The legal authorities dealing with the issue pending place the
burden squarely on the General Counsel to prove that Respon-
dent’s ULP which I found above, aggravated or prolonged the
strike. NLRB v. Champ Corp., 933 F.2d 688 (9th Cir. 1990).
However, the General Counsel must prove only that “the
unlawful conduct was a factor (not necessarily the sole or pre-
dominant one) that caused a prolongation of the work stop-
page.” F. L. Thorpe & Co., 315 NLRB 147, 149 (1994). In
consideration of all surrounding facts and circumstances, I find
that the General Counsel has met his burden in this case and
that the strike was converted to a ULP strike on or about
December 6 or 7, the date of the meeting on the picket line to
vote for conversion. To sum up, I have found a ULP and that it
was duly reported to Casey, a union agent. I have also found
that employees duly voted on the picket line to convert the
strike to a ULP strike. Notice was sent to Respondent
regarding the change in status of the strike (GC Exh. 3). Picket
signs were changed to reflect the conversion of the strike. See
Page Litho, 311 NLRB 881, 891 (1993); and R & H Coal Co.,
309 NLRB 28 (1992), enfd. 16 F.3d 410 (4th Cir. 1994). I also
find the requisite causal connection between the ULP and the
prolongation of the strike.
In analyzing the various factors, I have been cognizant of the
Board’s admonition in C-Line Express, 292 NLRB 638 (1989),
enf. denied 873 F.2d 1150 (8th Cir. 1989), taken from Soule
Glass Co. v. NLRB, 652 F.2d 1055 at 1086 (1st Cir. 1980), that
both the Board and the courts “must be wary of self-serving
rhetoric of sophisticated union officials and members inconsis-
tent with the true factual content.” With all due respect to Ca-
sey, he did not impress me as so sophisticated (consider Casey
addressing strikers on the picket line from the back of a pickup
truck while a striker translates his remarks into Spanish) as to
be disingenuous regarding the conversion of the strike.
Both objective and subjective factors may be probative of
conversion, . . . . NLRB v. Harding Glass Co., 80 F.3d 7 (1st
Cir. 1996), citing NLRB v. Moore Business Forms, Inc., 574
F.2d 835, 840 (5th Cir. 1978). At page 113 of the transcript,
Michel testified that he contacted 10–12 strikers. I agree with
the General Counsel (Br. 13, fn. 26), that he called several
strikers with the same promises and threats as related by Villa,
Paizano, and Buenrostro. The evidence shows that each person
called repeated that fact to others on the picket line, until all or
most who had been called became aware of the others in the
same category. I find that knowledge of Michel’s calls and the
reasonable belief amongst strikers that he was speaking for
Richard Gabriel caused substantial consternation among the
strikers, as they believed their jobs were in jeopardy. Of
course, this belief is more reasonable in the context of Respon-
dent’s hiring of permanent strike replacements beginning on
day 1 of the strike. Thus, I find no self-serving after the fact
evidence to which the Board accords little weight. See F. L.
Thorpe, supra at 150.
As to objective factors, Michel’s statements are similar to
those found in F. L. Thorpe and described by the Board as hav-
ing a reasonable tendency to prolong the strike and therefore
HERITAGE CONTAINER, INC. 461
afford a sufficient and independent basis for finding a conver-
sion. Id. p. 149. See also Gloversville Embossing Corp., supra
(letters to strikers from employer saying they would be termi-
nated if they refused to abandon strike caused conversion to
ULP strike).
3. Alleged unfair withdrawal of recognition
a.
On December 31, Respondent sent a letter to Casey which
reads as follows:

Lawrence Casey
Business Representative
Teamsters Local 578
1616 West 9th St. Suite 206
Los Angeles, CA 90015

Dear Sir,

This letter is to notify you that Heritage Container has re-
ceived objective written evidence that Teamsters Union Local
578 no longer represents the majority of Heritage Container
employees.

Yours truly,

/s/ Richard J. Gabriel
Richard J. Gabriel
President
[GC Ex. 5.]

The letter was based on a petition allegedly signed by a number
of Respondent’s employees, the heading of which reads as
follows:

12/12/97

As a vote of confidence in Heritage Container employees
have decided that they do not want the Teamsters Union, Lo-
cal #578 to be their bargaining agent any more.

Following this heading, 56 signatures were affixed to the peti-
tion (R. Exh. 1).
According to Respondent’s witness Richard Gabriel, he ar-
rived at work on December 31 and found the petition on his
desk, without explanation. After asking legal counsel for ad-
vice, R. Gabriel turned the document over to an employee,
“Orlando in Accounting,” who did not testify at hearing. Ac-
cording to R. Gabriel, Orlando verified that all persons whose
signatures were allegedly on the petition were current employ-
ees. However, Orlando did not nor did anyone else ever au-
thenticate the signatures as being genuine. No alleged signers
of the petition ever testified. In a check of the signatures by
attorneys for the parties during hearing, no record of employ-
ment were found for person #56, Alfonso Briones. In light of
this apparent error by “Orlando in Accounting,” the parties
agreed that the petition should contain only 55 names.
b.
In general, a union is entitled to an “irrebutable presumption
of majority status for the first year following its certification by
the Board. Thereafter, the presumption of majority status be-
comes rebuttable. In order to rebut the presumption and with-
draw recognition an employer may act based upon either an
affirmative showing that the union lacked majority support at
the time of withdrawal; or that it had a good-faith belief,
founded on a sufficient objective basis, that the union no longer
represented a majority of the employees. This good-faith belief
must be supported by objective considerations, which are clear,
cogent, and convincing. V & S ProGalv, Inc. v. NLRB, 168
F.3d 270, 281 (6th Cir. 1999); and Rock-Tenn Co. v. NLRB, 69
F.3d 64 (7th Cir. 1995).
In Allentown Mack Sales & Service. v. NLRB, 522 U.S. 359
(1998), the Court upheld use of the identical good-faith stan-
dard for both polling and withdrawal of recognition. In doing
so, the Court characterized a good-faith doubt as “a genuine,
reasonable uncertainty about whether [the union] enjoyed the
continuing support of a majority of unit employees.”6 In addi-
tion, the Court stated that employee statements of dissatisfac-
tion with the quality of union representation are relevant to
determining the existence of a good-faith doubt. The Court
held that evidence of a good-faith doubt might be provided by
“probative, circumstantial evidence.”
c.
I begin by questioning the probative value of the petition it-
self. None of the signatures were authenticated. The employee
Orlando who told Gabriel that all 56 signatures represented
names of employees made at least one error. Who circulated
the petition, when and under what conditions? None of these
questions have been addressed in the record. Yet, the General
Counsel glosses over these significant issues, contending in its
brief, page 16, that the central issue is “that most of the signa-
tures on such petition were invalid to establish a majority, in-
asmuch as such individuals were temporary strike replacements
of unfair labor practice strikers.” At the hearing, the General
Counsel had no objection to the petition being received into
evidence (Tr. 379). With all due respect to the General Coun-
sel, his apparent concession on the threshold issue of whether
the petition is valid (see e.g. Br. 17 reference “to those employ-
ees who signed the petition” (R. Exh. 2)) is not binding on me.
I find initially that the petition does not meet the clear, cogent,
and convincing standard of proof referred to above and Re-
spondent has therefore failed to carry its burden of proof.7
In addition to the petition lacking probative value, I note still
another hurdle which Respondent has not cleared. A good-faith
doubt as to the Union’s continuing majority status can arise
only in a context free of the coercive effect of unfair labor prac-
tices. Therefore, an employer cannot lawfully withdraw recog-
nition form a union if it has committed as yet unremedied un-
fair labor practices that reasonably tended to contribute to em-
ployee disaffection from the union. V & S ProGalv, Inc. v.
NLRB, supra, 168 F.3d at 281, citing Columbia Portland Ce-

6 Allentown Mack, supra. See also, Henry Bierce Co., 328 NLRB
646, 650–651 (1999).
7 Put another way, as part of meeting its burden of proof, Respon-
dent had a duty before it withdrew recognition from the Union, to as-
certain whether the supposed signatures on the petition represented the
uncoerced views of a majority its unit employees. Cf. Rock-Tenn Co. v.
NLRB, supra. At Br. 22–23, Respondent mistakenly attempts to shift
this burden to the General Counsel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 462
ment Co. v. NLRB, 979 NLRB 460, 464 (6th Cir. 1992); and
Detroit Edison Co., 310 NLRB 564 (1993) (direct dealing ULP
precludes withdrawal of recognition). See also Lee Lumber &
Building Material Corp., 322 NLRB 175, 177 (1996).8
A petition signed by at least half of a bargaining unit’s mem-
bers in which they indicate that they do not wish to be repre-
sented by the union ordinarily constitutes sufficient objective
evidence to rebut the union’s presumed majority status. NLRB
v. D & D Enterprises, 125 F.3d 200 (4th Cir. 1997) (citations
omitted). When the General Counsel attempts to rebut an em-
ployer’s alleged good-faith belief of lack of majority union
support, a multifactored analysis must be under taken to deter-
mine the validity of the employer’s belief. Id. at 209 citing
Master Slack Corp., 271 NLRB 78 (1984). The factors include
(1) the length of time between the ULP and the petition (about
3 weeks); (2) the nature of the employer’s illegal acts (coercion
of strikers to return to work by promises of benefits and threats
of job loss); (3) any possible tendency to cause employees dis-
affection from the Union (employees were led to believe that a
union-sponsored economic strike could result in permanent job
loss which clearly would encourage employees loss of faith in
and disaffection from the union); and (4) the effect of the
unlawful conduct on employee morale, organizational activities
and membership in the Union (unit employees were unsophisti-
cated Spanish-speaking employees who returned to work in
large numbers before the strike was over in part due to Respon-
dent’s ULP; the strike was negatively affected as were the
original economic objectives). Based on the above analysis,
and without respect to the petition’s other defects, I find that
there was a causal relationship between Respondent’s ULP and
the petition received by Respondent on December 31. Respon-
dent may not therefore rely on the petition to establish a good-
faith doubt of the Union’s majority status. Vincent Industrial
Plastics, 328 NLRB 300, 301–302 (1999); Wire Products Mfg.
Corp., 326 NLRB 625 fn. 14 (1998).
Notwithstanding my conclusions above, I turn now to assess
whether there is a proper majority of signatures on the petition
to permit Respondent to withdraw recognition from the Union,
i.e., to rebut the presumption of continuing majority support.
For purpose of the following discussion, I will assume for the
sake of argument that the signatures on the petition were au-
thenticated and that the ULP found above was not sufficient to
preclude a good-faith belief that the Union lacked majority
support.
As Respondent urges me to do (Br. 23), I begin with the size
of the prestrike bargaining unit—55 employees.
The number of permanent replacement between December 2
through December 29—47 employees.

8 At Br. 23, Respondent refers to the absence of any allegation in the
complaint alleging taint of the petition. In response, I note that Re-
spondent was on notice of the General Counsel’s claim that its ULP
converted the strike. The very same ULP tainted the petition on which
Respondent purported to rely. This issue, as well as the issue regarding
the unauthenticated signatures on the petition were fully litigated at
hearing. Accordingly, it is entirely proper to make findings on both,
without prejudice to Respondent. Mine Workers District 29, 308
NLRB 1155, 1156 (1992); NLRB v. Coca Cola Bottling Co., 811 F.2d
82, 87–88 (2d Cir. 1987).
Of the 55 employees who signed the petition, number of em-
ployees who worked for the Company prior to December 2—10
employees.
At page 23 of its brief, Respondent computes the relevant
bargaining unit as 102 employees (55 employees in the pre-
strike unit plus 47 permanent replacements). This computation
is based on an assumption that the strike remained an economic
strike, an assumption not supported by the evidence. Accord-
ingly, an alternative analysis must be used. At page 17 of his
brief, the General Counsel contends that replaced former eco-
nomic strikers were eligible to vote in an election conducted
within a 12-month period following commencement of the
strike. To this group, I add strike replacements (prior to con-
version of the strike) and nonstrikers. Tractor Supply Co., 235
NLRB 269 (1978).
The General Counsel marks the conversion of the strike on
December 3; I found above the correct date to be December 6
or 7. This difference of opinion results in only two additional
replacements (#13 and #15 on petition) added to the 12 em-
ployees counted at footnote 31, page 17 of the General Coun-
sel’s brief. Thus, the valid bargaining unit is 69 employees and
Respondent would need at least 35 valid signatures on the peti-
tion. The General Counsel mistakenly claims to his prejudice
that 13 members of the original bargaining unit signed the peti-
tion; however, the parties stipulated at hearing that 10 of the
people who signed the petition were employees of the Com-
pany prior to December 2 (Tr. 297). Thus, 10 prestrike signers
added to 14 permanent replacements results in 24 signers, 11
short of a valid majority. For this and for all the reasons dis-
cussed above, I find that Respondent was not legally entitled to
withdraw recognition from the Union and in doing so, violated
Section 8(a)(1) and (5) of the Act.9
4. Respondent’s alleged refusal to reinstate all ULP strikers
On January 12, 1998, Casey faxed a letter to Respondent on
behalf of the [ULP] strikers, unconditionally offering to return
to work on January 13, 1998 (GC Exhs. 7(a), (b)). An em-
ployer has no duty to reinstate strikers unless and until an un-
conditional offer to return to work from the strike is made.
McAllister Bros., 312 NLRB 1121, 1123 (1993); Clow Water
Systems Co. v. NLRB, 92 F.3d 441, 442 (6th Cir. 1996).
Respondent did not reply to the Union’s letter uncondition-
ally offering to return to work. Instead, apparently relying on
its theories that the strikers were economic strikers and that it
had properly withdrawn recognition from the Union, it treated
the strikers as returning economic strikers and placed those who
it contended had been permanently replaced on a preferential
hiring list (R. Br. 24).
As recently stated by the administrative law judge in Detroit
Newspapers. 326 NLRB 782, 784 (1998).

9 At p. 18, fn. 34 of its brief, the General Counsel explains the pres-
ence of a brief from Chelsea Industries, Case 7–CA–36846 appended
to his brief for the present case. I express no opinion on whether Cela-
nese Corp. of America, 95 NLRB 664 (1951), should be overruled, the
issue in Chelsea Industries, as I lack the authority to instruct the Board
on its duty.
HERITAGE CONTAINER, INC. 463
Unfair labor practice strikers are entitled to reinstatement
upon their unconditional offer to return to work, displacing, if
necessary, any replacements hired during the strike. Mastro
Plastics Corp. v. NLRB, 350 U.S. 270 (1956). An employer
violate[d] Section 8(a)(3) and (1) of the Act by failing to offer
reinstatement to unfair labor practice strikers who have made
an unconditional offer to return to work. Cal Spas, 322
NLRB 41 (1996). In order to permit an orderly return to
work, the Board affords an employer a 5-day period in which
to return the former strikers to work without incurring a back-
pay obligation. However, [when] that 5-day grace period is
ignored, then backpay obligations begin from the date of the
unconditional offer to return to work. La Corte ECM, Inc.,
322 NLRB 137 (1996).

Based on the above, I find that Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act by failing to offer reinstatement
to ULP strikers who have made an unconditional offer to return
to work.10
In conclusion, I find that Respondent’s individual offers of
reinstatement to certain former strikers were invalid. As the
Board stated in Orit Corp., 294 NLRB 695 fn. 3 (1989), re-
spondent never made a valid offer of reinstatement because it
failed to respond to the union and instead notified a limited
number of individual employees directly as to the circum-
stances of their return (piecemeal reinstatement). Because the
reinstatement offers are invalid, Respondent was not entitled to
treat nonreturning employees as having abandoned their em-
ployment. An employee does not waive reinstatement by fail-
ing to respond to an inadequate offer. Orit Corp., supra, at
699.11
5. Respondent’s alleged coercive statements
The General Counsel refers to three instances where Re-
spondent violated the Act by coercive statements to Almaraz
(Br. 11–12, 21).
a.
In early September, Tom Gabriel is alleged to have called
Almaraz into his office twice and to tell him that his father
Richard Gabriel would never allow the Union in, would rather
close the plant and die than allow the Union to take over. T.
Gabriel also allegedly said that Almaraz could become a super-
visor and make more money, but that he needed to persuade his
coworkers to get rid of the Union. In his testimony, T. Gabriel
denied making the remarks in question.

10 There is no issue before me regarding any claim by Respondent
that it had a legitimate and substantial business justification for refusing
to discharge permanent replacements. NLRB v. Mackay Radio & Tele-
graph Co., 304 U.S. 333 (1938); Hotel Roanoke, 293 NLRB 182, 185
(1989); and NLRB v. Champ, 933 F.2d 688, 697 (9th Cir. 1990).
11 In light of my findings and conclusions, it is unnecessary to con-
sider separately the discriminatees alleged in the complaint: Juan Al-
maraz, Reynaldo Ayala, Martin Bermejo, Carlos Cervantes, and Mois-
ess Michel. However, I note that Respondent’s argument (Br. 25), that
some or all of these discriminatees obtained alternative employment
and abandoned the strike is without merit. See Oregon Steel Mills, 300
NLRB 817, 820–824 (1990), and Lone Star Industries, 279 NLRB 550,
553–554 (1986), affd. in part 813 F.2d 472 (D.C. Cir. 1987).
For several reasons, I do not credit Almaraz and will recom-
mend this allegation be dismissed. First, I note that Almaraz
was a member of the employee advisory committee during
negotiations. After the alleged remarks of T. Gabriel in Sep-
tember, there was at least one additional bargaining session (Tr.
59). There is no evidence that Almaraz reported the alleged
remarks to Casey, to the Federal mediator, or to anyone else.
Given the 2 years bargaining history and Almaraz’ experiences
on the employee advisory committee, I would have expected
him to report these coercive remarks, just as employees had no
trouble reporting Michel’s telephone calls to Casey. Next, I
cannot fathom why T. Gabriel would have made these remarks,
since the Union was already in the company and T. Gabriel
would have risked an embarrassing incident during the final
session of bargaining if Almaraz had referred to the remarks.
Moreover, Gabriel knew the Union would have placed blame
for the strike squarely on him if his remarks had been reported.
Finally, with these doubts and a lingering fear that Almaraz’s
English was not as good as he believed, I simply am unable to
credit Almaraz on this point.
b.
A second statement in question concerns Almaraz’s testi-
mony that on January 17, 1998, he encountered Tom Gabriel
outside the company and Gabriel said that he was fired because
people like you hurt the company; he then asked Almaraz to
turn in his uniforms which Almaraz did the next day, receiving
his personal tool box and last check in exchange. T. Gabriel
denied having the conversation in question, but consider his
exact testimony on direct examination:

Q. . . . did you have a conversation with Mr. Almaraz
where you asked him to bring his uniforms back?
A. Me personally?
Q. Yes.
A. No.
Q. Do you know anybody else in your company who
did?
A. I couldn’t say for sure.
Q. . . . did be bring his uniforms and pick up his tools?
A. . . . Yes he did return his uniforms. And yes he did
[pick up] his tools.
. . . .
Q. Do you know if anybody asked Mr. Almaraz to
bring his uniforms back.
A. I couldn’t say.
[Tr. 312–313.]

In this case I credit Almaraz since I can imagine no circum-
stances where he would voluntarily turn in his uniforms and
receive his final check and tool box. Threats to fire strikers or
firing strikers in fact violate Section 8(a)(1) of the Act and I so
find here. B. N. Beard Co., 248 NLRB 198, 208 (1980); Super
Glass Corp., 314 NLRB 596 fn. 1 (1994); and citing Abilities &
Goodwell, 241 NLRB 27 (1979).
c.
In March 1998, Jaime Michel and his wife and their four
children came to Almaraz’s home on a Sunday for a barbecue.
Michel visited often there since he is Almaraz’ brother-in-law.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 464
At some point while the two wives were cooking dinner, the
two men were alone on the backporch, and Michel asked Al-
maraz what he was going to do now. (Apparently a reference
to his termination.) Almaraz explained that he would look for
work elsewhere and Michel said, “I might be able to help you,
maybe I can talk to Mr. Richard or Tom Gabriel, but they hate
you guys. They don’t like you. . . . You are troublemakers for
the company” (Tr. 236).
I will recommend this allegation be dismissed. Almaraz was
an open union supporter visiting his brother-in-law for a Sun-
day dinner when statements were made by Michel in the con-
text of Michel offering to help Almaraz obtain reinstatement.
Almaraz knew how the Gabriels felt about him. I ask, where’s
the coercion, or to use the popular jargon of the day, Where’s
the Beef? I find none here.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (5) of the Act by
its supervisor Jaime Michel directly dealing with striking em-
ployees and by Respondent withdrawing recognition from the
Union.
4. Respondent violated Section 8(a)(1) of the Act by its Su-
pervisor Jaime Michel telling striking employees they would
lose their jobs if they did not return to work and by offering
them more money to do so; and by its supervisor, T. Gabriel,
threatening to and firing in fact a striking employee.
5. The strike against Respondent was converted to an unfair
labor practice strike on or about December 6 or 7. By failing
and refusing to reinstate unfair labor practice strikers who had
not been permanently replaced as of December 6 or 7, and who
made unconditional offers to return to work, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
6. By the aforesaid conduct, Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices within the meaning of the Act, I shall rec-
ommend that it be ordered to cease and desist and to take cer-
tain affirmative action designed to effectuate the policies of the
Act. I have found that the economic strike that began on De-
cember 2, 1997, was converted to an unfair labor practice strike
on December 6 or 7, 1997. I have further found that the Re-
spondent violated Section 8(a)(3) and (1) by refusing to rein-
state unfair labor practice strikers who were not offered rein-
statement, and who were not permanently replaced before De-
cember 6 or 7, 1997, I shall recommend that Respondent be
required to reinstate them immediately to their former positions
or, if those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority and other rights
and privileges, discharging if necessary all replacements hired
after December 6 or 7, 1997. If, after such dismissals, there are
insufficient positions available for the remaining former strik-
ers, those positions which are available shall be distributed
among them without discrimination because of their union
membership or activities or participation in the strike, in accor-
dance with seniority or other nondiscriminatory practice util-
ized by the Respondent. The remaining former strikers who
were not replaced prior to the conversion, as well as those for-
mer strikers who were permanently replaced prior to the con-
version, for whom no employment is immediately available,
shall be placed on a preferential hiring list in accordance with
seniority or other nondiscriminatory practice utilized by the
Respondent, and they shall be reinstated before any other per-
sons are hired or on the departure of their preconversion re-
placements.
The employees entitled to immediate reinstatement, as well
as those unfair labor practice strikers who made unconditional
offers to return to work and were offered reinstatement by the
Respondent, shall be made whole for any loss of earnings they
may have suffered by reason of the Respondent’s refusal to
reinstate them in accordance with their unconditional requests
to be reinstated. Backpay shall be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest to be computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987). Further, Respondent
shall be ordered to post a notice setting forth its obligations
herein.
ORDER
The Respondent, Heritage Container, Inc., Riverside, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Steel, Paper House, Chemi-
cal Drivers & Helpers Local 578, International Brotherhood of
Teamsters, AFL–CIO or any other labor organization, by fail-
ing and refusing to reinstate unfair labor practice strikers on
their unconditional offers to return to work who were not per-
manently replaced prior to the strike’s conversion from an eco-
nomic strike.
(b) Directly dealing with striking employees.
(c) Threatening striking employees with job loss if they did
not return to work and offering them higher wages to do so.
(d) Threatening striking employees with discharge for being
on strike and firing a striker in fact for striking.
(e) Withdrawing recognition from the Union in the absence
of a bona fide doubt of the Union’s majority status.
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Offer all employees who were not offered reinstatement
and were not permanently replaced prior to December 6 or 7,
1997, full and immediate reinstatement to their former jobs or,
if those no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and privi-
leges, discharging if necessary, any replacements hired on or
after December 6 or 7, 1997.
(b) Place any remaining former strikers, who were not re-
placed prior to December 6 or 7, 1997, as well as any former
HERITAGE CONTAINER, INC. 465
strikers who were replaced prior to December 6 or 7, for whom
no employment is immediately available, on a preferential hir-
ing list in accordance with their seniority or other nondiscrimi-
natory practice utilized by the Respondent and offer them em-
ployment before any other persons are hired or on the departure
of any replacements hired before December 6 or 7, 1997.
(c) Make whole all unfair labor practice strikers to whom the
Respondent failed to offer reinstatement on their unconditional
offer to return to work, for any loss of earnings which they may
have suffered, in the manner set forth in the remedy section of
this decision.
(d) On request, recognize and bargain with Steel, Paper
House, Chemical Drivers and Helpers Local 578, International
Brotherhood of Teasters, AFL–CIO as the exclusive collective-
bargaining representative of the unit employees, and if an un-
derstanding is reached, embody the understanding in a signed
agreement. The appropriate unit is:

All production and maintenance employees employed by Re-
spondent at its facility located at 4777 Felspar Street, River-
side, California; excluding all office clerical employees, pro-
fessional employees, guards, watchmen, and supervisors as
defined in the Act.

(e) Preserve and, within 14 days of a request, make available
to the Board and its agents for examination and copying all
payroll records, social security payment records, timecards,
personnel records and reports, including an electronic copy of
the records if stored in electronic form, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(f) Within 14 days after service by the Region, post at its
Riverside, California facility, copies of the attached notice,
marked “Appendix.”12 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately on receipt and maintained for 60
consecutive days in conspicuous places, including all places
where notice to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current and
former employees employed by Respondent at any time since
December 3, 1997.
(g) Within 21 days after service by Region, file with the Re-
gional Director, a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”