**PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT**
**To:** Ironvale Components — CEO, VP HR, Bargaining Lead
**From:** Labor counsel
**Re:** Strike classification, replacement rights, and immediate corrective plan

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## 1. Bottom line

The classification fight is not winnable on this record, and the cost of losing it grows every day. The June 3 differential cut is a textbook unlawful unilateral change; the union's contemporaneous documents tie the strike directly to it; and the June 25 unconditional offer started a back-pay clock that is running against us right now on roughly four dozen employees. Our leverage lies not in defending the "economic strike" label but in stopping the clock fast, narrowing exposure to the three individuals where we actually have a defense, and buying a global resolution while our remedial exposure is still measured in weeks.

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## 2. The June 3 change (Rule 5)

Every element of a violation is present:

- **Mandatory subject.** A $1.75 evening-shift differential is wage/premium pay — squarely mandatory.
- **Material.** $1.75/hour is roughly $3,600 annually per full-time evening employee. Not de minimis.
- **Bargaining ongoing, no agreement.** The change came mid-negotiation, unilaterally.
- **No past practice.** The facts state the company had *never* changed the differential without bargaining — the practice runs against us.
- **No emergency.** Stipulated.

Available defenses are thin. A management-rights or contract-expiration argument does not help: an expired term that sets compensation still defines the status quo the employer must maintain during bargaining, and waiver must be clear and unmistakable. There is no such clause in play here.

**The internal email is the decisive problem.** "Cut it now. They need to understand that delay has a cost" is an admission that the cut was *bargaining leverage*, not business necessity. It (a) forecloses any good-faith or business-justification narrative, (b) supplies affirmative evidence of animus and of intent to coerce, and (c) is the single document a factfinder will quote. Assume it is discoverable — it is a business communication, not legal advice, and not privileged. Issue a litigation hold today and route further strategy discussion through counsel.

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## 3. Classification: mixed motive, therefore unfair-practice (Rules 1, 2, 8)

The union's initial burden under Rule 8 is *material contribution*, not sole causation. It carries that burden easily:

| Evidence | Effect |
|---|---|
| **June 4 demand for restoration**, calling the change unlawful | Establishes the violation was live in the union's decision-making before the strike |
| **June 5 strike notice** naming *both* the wage proposal and "its unlawful unilateral elimination of the evening differential" | Contemporaneous, self-authenticating statement of dual objective — the classic mixed-motive fact pattern |
| **Picket signs**: "6 percent" *and* "restore our shift pay" | Corroborates that the ULP was a public, ongoing strike objective, not a litigation afterthought |
| **June 12 offer** to end the strike immediately on restoration + resumed wage bargaining | Nearly dispositive. The union offered to abandon the wage strike if we cured the ULP. That proves the ULP was not merely present but *necessary* to the strike's continuation |
| **Internal email** | Shows we caused the trigger deliberately |

Our best counter — that the strike vote on May 28 predated June 3, so the strike was "already decided" — actually cuts against us on prolongation. Even if the *decision* were purely economic, Rule 2 makes a strike an unfair-practice strike if the violation materially contributed to its **continuation**. Our June 12 refusal to restore the differential converted whatever was economic into a ULP strike from that date forward, at the latest. And the May 28 vote was only *conditional* authorization ("if no agreement is reached"), which is weak evidence of a fixed pre-June 3 objective.

**Assessment: 85–90% likelihood the strike is adjudicated an unfair-practice strike, either from June 5 or from June 12.** Mixed motives do not split the remedy — under Rule 2 a materially ULP-caused strike *is* a ULP strike, with full Rule 4 consequences. There is no pro-rata outcome.

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## 4. Replacement rights under each classification (Rules 3, 4)

- **If economic (the case we cannot win):** the 60 permanent replacements stay; strikers hold employee status with preferential recall as vacancies arise; the 12-reinstated-plus-recall-list approach is correct; no back pay.
- **If unfair-practice (the likely case):** replacements may be *temporary only*. Our June 10 "permanent" designation is legally ineffective — a label cannot create rights the law denies. Upon the unconditional offer, strikers get **immediate reinstatement, displacing replacements**. The preferential-recall list is the wrong remedy and is itself the continuing violation.

Note the timing problem: we designated replacements permanent on **June 10** — five days *after* a strike notice that expressly alleged an unlawful unilateral change. We acted with notice of the ULP theory. That defeats any equitable "we relied in good faith" argument.

Separately, we have **exposure to the replacements**. If any received written or oral assurances of permanent employment, displacing them invites misrepresentation or promissory-estoppel claims. Pull every offer letter, script, and recruiter communication today.

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## 5. Effect of the June 25 unconditional offer, and back-pay exposure (Rules 4, 7)

June 25 is the pivot date. The offer was written, unconditional, and made on behalf of every striker — no individual reapplication may be required, and no conditions (waivers, releases, probationary status, demotion, "reapply as new hires") may be attached.

From June 25 forward:

- **Reinstatement obligation:** immediate — practically, within a few days, displacing replacements as needed.
- **Back pay accrues** for each striker not reinstated, at full straight-time and regularly worked overtime, until a valid unconditional offer of reinstatement to the same or substantially equivalent position is made.
- **Offsets:** interim earnings (mitigation, Rule 7). Mitigation reduces but rarely eliminates; and gaps in a claimant's job search do not toll the whole period.

**Order-of-magnitude exposure.** With ~60 strikers, 12 reinstated and 3 contested, roughly **45 employees** are accruing back pay. At an illustrative $25/hour, that is on the order of **$90,000 per week** in gross back pay before offsets, plus:

- Make-whole for the **differential itself** — $1.75/hour for all evening hours from June 3 forward for every affected employee, plus interest, whether or not they struck;
- Restoration of the differential going forward, with a bargaining obligation before any change;
- Verification that the 12 reinstated employees went to their *own or substantially equivalent* jobs — if any were downgraded in shift, rate, or classification, they have partial back pay too;
- Reinstatement/notice-posting and possible bargaining-order relief.

The exposure is a function of elapsed weeks. That is why speed dominates every other consideration.

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## 6. The three individuals (Rules 6, 9)

Handle these **individually and case-by-case**. Under Rule 9, group denial based on three people's conduct is itself unlawful and would convert a defensible misconduct posture into a second violation.

**Striker A — bottle thrown, car window broken (video).** Strongest case. Deliberate property destruction plus a projectile thrown toward a person's vehicle implicates both destruction and physical danger. Video authentication and confirmed identification make denial of reinstatement defensible. **Recommendation: deny reinstatement; document identification chain, preserve the video, obtain the replacement's statement and repair estimate; consider referral to police only on advice of counsel** (referral can look retaliatory if it is our only "discipline," but is defensible where the conduct is genuinely criminal and we treat comparable conduct alike).

**Striker B — recorded threat to "break your jaw."** Defensible but not airtight. Rule 6 requires a **credible** threat. Analyze: to whom, in what proximity, accompanied by any physical movement, repeated or one-off, in a context of other violence on the line. Given Striker A's bottle, the atmosphere argues credibility. But if the recording shows a single shouted line from behind a picket line at distance, a factfinder may treat it as heated hyperbole. **Recommendation: deny reinstatement, but price a fallback** — reinstatement with a final warning and no back pay, or a short unpaid suspension — as a settlement lever. Preserve the recording and the target's contemporaneous statement.

**Striker C — blocked truck entrance 7 minutes, dispersed on police instruction.** **No forfeiture.** Rule 6 expressly protects "blocking an entrance briefly without violence," and compliance with police cuts decisively in his favor. **Recommendation: reinstate immediately with back pay from June 25.** Contesting this individual is the fastest way to lose credibility on A and B and to invite a Rule 9 finding.

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## 7. The lawful immediate response (act this week)

**Non-misconduct strikers (≈45).**
Send individual written unconditional offers of reinstatement to the same or substantially equivalent position, shift, and rate, with a reporting date within 5 business days. No waivers, no conditions, no reapplication, no new-hire status, no loss of seniority. This stops the back-pay clock even without conceding classification. Send tracked mail plus email; log everything.

**Replacements.**
Displace as necessary, in a documented, neutral order. Provide written notice explaining that reinstatement is legally required, offer severance where offer letters created expectations, and place them on a hiring list for genuine future vacancies. Do not retain replacements over returning strikers to "avoid disruption" — operational inconvenience is not a defense under Rule 4.

**The differential.**
Restore the $1.75 differential retroactive to June 3 with interest, for all affected employees. This is cheap, cures the underlying violation, removes the strike's ULP trigger, and materially improves our remedial and equitable posture. Do not condition restoration on union concessions.

**Bargaining.**
Resume promptly with a written commitment to no unilateral changes to mandatory subjects absent agreement or impasse. Bring a movement on wages — the record now shows the union was willing to end the strike on June 12 for restoration plus resumed bargaining; take that deal now, late, rather than litigate it.

**Internal.**
Litigation hold; counsel-channel all classification discussion; coach the bargaining lead on written communications; audit whether any other unilateral changes occurred after May 1.

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## 8. Strategy: cure and settle, do not defend the label

Defending "this was an economic strike" is a losing posture that costs roughly $90,000 per week in accruing back pay while we lose it. The correct strategy is to **concede nothing formally, cure everything immediately, and convert the cure into a settlement.**

Sequence:

1. **Cure (days 1–5):** restore the differential retroactively; issue individual reinstatement offers to all 45 non-misconduct strikers plus Striker C. Back-pay accrual ends ~June 30 instead of running for months.
2. **Narrow (days 1–10):** build individualized files on A and B only. Expressly disclaim any group-based denial in writing to the union.
3. **Settle (weeks 2–6):** offer a global agreement — back pay June 25 to reinstatement date for all returned strikers, differential make-whole with interest, a no-unilateral-change commitment, a neutral resolution for A and B (deny A; suspension-plus-final-warning for B), non-admission clause, withdrawal of charges, and a notice posting if required. Fold this into a contract settlement so wage movement buys peace on the strike claims.
4. **Preserve (throughout):** maintain the mixed-motive/prolongation argument as a litigation reserve if the union overreaches on remedy quantum — but never let the argument delay the cure.

The single most important instruction: **the clock, not the classification, is the exposure.** Every day we hold 45 employees on a preferential-recall list they are not legally required to accept, we buy back pay we cannot offset and evidence of bad faith we cannot explain.