Medite of New Mexico, Inc. v. National Labor Relations Board, Perry R. Salazar Leroy Cordova Arturo Tafoya Max Salazar Benny Coca William Cordova Karl Mueller Pete Montano Homer Jones Feliverto A. Casias Manuel Sanchez George Montoya, Intervenors
Docket: 94-9575
Court: Court of Appeals for the Tenth Circuit; December 6, 1995; Federal Appellate Court
Medite of New Mexico, Inc. sought judicial review of a National Labor Relations Board (NLRB) order that partly affirmed and modified an Administrative Law Judge's (ALJ) findings of violations of the National Labor Relations Act related to an economic strike at Medite's Las Vegas plant. The strike commenced on June 11, 1990, involving 60 of the 103 employees after the Western Council of Industrial Workers was elected as their exclusive bargaining representative. Medite warned strikers they would be permanently replaced if they did not return, which occurred by the end of June.
Following the strike's conclusion and the Union's decertification on October 24, Medite barred former strikers from the plant except for escorted access to retrieve personal items. Many former strikers sought reinstatement in late 1990, but Medite denied their requests, citing the hiring of replacements. In September 1991, Medite posted a job opening for a cutoff saw helper, filling the position with Richard Martinez, a replacement worker, while not offering it to Montano, a former striker who had previously held that role. The court denied Medite's review request and enforced the NLRB's order.
Between March and November 1991, Medite filled vacant bander positions by promoting laborers hired during a strike, instead of reinstating former striker Max Salazar, who had been a bander before the strike began. Similarly, in June 1991 and April 1992, replacement laborers were promoted to vacant sander forklift operator positions without offering these roles to former striker Tafoya. Former striker Perry Salazar, a utility employee, was informed of a utility position vacancy in July 1991. However, when he expressed his desire to return, personnel director Stone denied his reinstatement, citing his misconduct during the strike.
In August 1991, Medite notified former striker Mueller of a laborer position vacancy, stating that if he did not respond by August 27, the company would assume he was not interested. Mueller acknowledged receipt of the letter but contacted Stone after the deadline, leading to a claim by Medite that he was uninterested. Medite did not offer reinstatement to several other former strikers, including Casias, Coca, Leroy Cordova, William Cordova, Jones, Montano, Montoya, Sanchez, and Tafoya, aside from the communications with Mueller and Perry Salazar.
Perry Salazar filed a charge against Medite on August 13, 1991, alleging violations of the National Labor Relations Act for failing to reinstate him. On January 14, 1992, other former strikers filed similar charges, which were consolidated for a hearing. An Administrative Law Judge (ALJ) concluded that Medite had violated the Act by failing to reinstate Montano, Mueller, Max Salazar, Perry Salazar, and Tafoya. However, the ALJ determined that there was no violation concerning Casias, Coca, Leroy Cordova, William Cordova, Jones, Montoya, and Sanchez due to the absence of vacancies in their previous positions or equivalent roles. Additionally, it was found that Leroy Cordova, Jones, Casias, and Sanchez were not denied the opportunity to bid on vacancies open to all Medite employees.
A three-member panel of the Board reviewed and partially modified the ALJ's Order concerning Medite's labor practices. The Board affirmed the ALJ's finding of a violation of the Act for Medite's failure to reinstate Montano, Mueller, Max Salazar, Perry Salazar, and Tafoya but reversed the finding regarding Casias, Coca, Leroy Cordova, William Cordova, Jones, Montoya, and Sanchez. The Board found that Medite violated the Act by not allowing Leroy Cordova, Jones, Casias, and Sanchez to bid on job vacancies. The matter was remanded to the ALJ to determine if William Cordova had effectively resigned and if Coca and Montoya engaged in strike misconduct warranting loss of protections under the Act. The Board ordered Medite to cease unfair labor practices, reinstate the affirmed employees, offer reinstatement and back pay to the others if it is determined they were denied bids, and post a notice.
Medite contested the Board's Order, claiming it was denied a fair hearing due to the ALJ not sequestering witnesses and not admitting a videotape of alleged misconduct. Medite argued that the General Counsel did not prove the existence of vacancies for reinstatement, that the Board erred in finding discrimination in filling job vacancies, and that the law regarding reinstatement of strikers engaged in misconduct was misapplied. The standard for reviewing the Board's order involves de novo review for legal determinations, while factual determinations are upheld if supported by substantial evidence. Substantial evidence is defined as relevant evidence a reasonable mind would accept to support conclusions, and courts must affirm the Board's findings unless the evidence does not support them, regardless of differing opinions on the outcome. The reviewing court respects the Board's discretion even when conclusions differ from the ALJ's findings.
Medite contends it was denied a fair hearing due to evidentiary errors made by the Administrative Law Judge (ALJ). It argues the ALJ improperly allowed the General Counsel's witnesses to testify about common events and failed to admit a videotape purportedly showing striker misconduct.
Regarding the exclusion of witnesses, Medite invoked Federal Rule of Evidence 615 to request that the Charging Parties be excluded during testimony about shared events. The ALJ denied this request, asserting that the Charging Parties had a right to hear all proceedings. The Board found this denial to be an error, referencing previous cases that established a sequestration policy. However, the Board concluded that Medite was not prejudiced by this error concerning its arguments about the reinstatement of certain individuals.
Medite also claimed it was prejudiced in presenting evidence of misconduct by certain strikers. The Board disagreed, noting that findings regarding the alleged misconduct were supported by Medite's own witnesses, not solely by the General Counsel's witnesses. The Board determined that Medite experienced no prejudice related to the strikers in question.
Additionally, Medite argued that the ALJ wrongly excluded a videotape intended to show Tafoya's misconduct during a picket line incident. The Board upheld this exclusion, stating the tape lacked an adequate foundation for admission because it had been edited prior to trial by someone other than the individual who recorded it, and the recorder could not testify about the editing process. Thus, the Board deemed the videotape inadmissible.
Medite of New Mexico, Inc. was found by the Board to have suffered no prejudice from the exclusion of a videotape, as the Administrative Law Judge (ALJ) determined it did not show misconduct by Tafoya, supported by Medite's witnesses. The Ninth Circuit emphasized the need to assess the correctness of the Board's evidentiary rulings when enforcing its decisions, which involves evaluating adherence to federal rules of evidence. The courts review the Board's evidentiary decisions, particularly focusing on the foundational accuracy of evidence like motion pictures. Medite did not contest the Board's finding that the tape was edited by someone other than the original maker, R. Cordova, who could not testify about the editing, leading to a conclusion of inadequate accuracy.
Additionally, Medite raised issues regarding its obligations toward former strikers under Section 7 of the Act, which protects employees' rights to strike. Economic strikers maintain their employee status and are entitled to reinstatement upon an unconditional return offer, unless a legitimate business justification for refusal exists. The Board concluded that Medite violated the Act by not offering reinstatement to strikers Tafoya and Montano in their previous or equivalent positions. Medite contested that the General Counsel did not prove the existence of such positions. Specifically, Montano had offered to return to his pre-strike role as a cutoff saw helper, but Medite failed to offer him this position, which had been filled by another employee during the strike.
The Board aims to balance employee and employer rights during strikes by permitting replacement workers to remain permanently while ensuring that genuine vacancies are offered to striking workers based on seniority once the strike concludes. A "genuine vacancy" occurs when the workforce expands, an employee is discharged, or an employee quits, but not when a replacement worker is temporarily laid off with a reasonable expectation of recall. The General Counsel must initially demonstrate that a layoff signifies a genuine vacancy.
In the case at hand, Medite contended that the General Counsel did not prove that Martinez lacked a reasonable expectation of recall. However, the Administrative Law Judge (ALJ) and the Board found that Martinez was demoted rather than laid off, and when a vacancy arose, it was posted for all employees, undermining Medite's claim of a reasonable expectation for Martinez's return. Medite argued there was insufficient record support for this finding, but the Board's determination was based on factual evidence reviewed for substantiality, confirming the Board's responsibility to balance business justification against employee rights in accordance with the National Labor Relations Act.
Tafoya, who had been a saw forklift operator, offered to return to work after the strike. Subsequently, two laborers hired during the strike were promoted to sander forklift operator positions. The ALJ found the two forklift operator roles to be substantially equivalent despite minor differences in equipment size and operation. The Board upheld the ALJ's findings, concluding that Medite violated the Act by not reinstating Tafoya into an available sander forklift vacancy, with substantial evidence supporting the Board's conclusion.
The ALJ and the Board found no vacancies in the pre-strike jobs held by Casias, Coca, L. Cordova, W. Cordova, Jones, Montoya, or Sanchez. While the ALJ determined that Medite did not violate the Act by denying these individuals the opportunity to bid on job vacancies, the Board concluded that Medite violated the Act by not allowing L. Cordova, H. Jones, F. Casias, and M. Sanchez to bid on posted vacancies available to all employees. The Board's ruling is based on the principle that an employer's obligation to reinstate former economic strikers is limited to vacancies created by the departure of replacements or substantially equivalent jobs. Nonetheless, former strikers are entitled to nondiscriminatory treatment and must be allowed to apply for other jobs as if they had not struck.
Medite's hiring practices involve filling vacancies either through automatic promotions or a bid procedure where job postings are available for all full-time active employees for five days. However, former strikers were not allowed entry into the plant except with escorts and were not informed about job postings. The Board ruled that Medite's failure to notify former strikers of job openings constituted discrimination. To rectify this, Medite must provide former strikers who have unconditionally offered to return to work with notice of job postings and a fair opportunity to bid.
Medite contended that the Board's requirements imposed a new duty to inform strikers of non-equivalent job openings, which they argued was inconsistent with past precedents. However, the Board clarified that it does not require Medite to actively seek out and notify all former strikers of every job vacancy. Instead, it established that former strikers should be treated equally to other employees regarding access to job vacancies, and the denial of this access constitutes discrimination as prohibited under established case law.
Striking employees who commit serious misconduct during a strike forfeit protections under the Act and may not be entitled to reinstatement. Employers must have evidence linking the specific misconduct to the individual striker to deny reinstatement. Misconduct must demonstrate a tendency to coerce other employees' protected rights. An employer's honest belief that misconduct occurred can serve as a defense against claims of discrimination in reinstatement, unless it is shown that no misconduct took place. The General Counsel carries the initial burden to establish a prima facie case for denial of reinstatement due to misconduct, after which the employer can defend its actions based on its honest belief in the misconduct. The burden then shifts back to the General Counsel to prove that no misconduct occurred.
In the case of Medite, the company contends that employees Perry Salazar and Tafoya engaged in serious misconduct that justified their non-reinstatement. However, the Board found that Medite violated the Act by failing to reinstate them, ruling that the conduct in question did not sufficiently constitute misconduct that could coerce or intimidate employees in exercising their Section 7 rights. Specific findings from an incident involving Salazar and Tafoya describe them picketing and verbally confronting Foreman Tommy Ortiz, who was stopped in his vehicle. They called him a "scab," struck his vehicle with picket signs, and attempted to persuade him to leave his vehicle, while Ortiz remained unresponsive.
Ortiz reported discovering 8 to 10 deep scratches on his vehicle and subsequently informed Plant Manager Miller before going to a police station to file a report. After leaving the station, Ortiz followed Salazar, who had just finished his picketing shift. When Salazar noticed Ortiz trailing him, he pulled over to confront him. Ortiz accused Salazar of damaging his jeep, to which Salazar denied any responsibility. Ortiz threatened that he and his brothers would retaliate, and after a brief exchange, he drove away without further comment.
The administrative law judge (ALJ) found insufficient evidence to support Ortiz's claims against Salazar and Tafoya regarding the scratches, noting Ortiz did not witness the alleged act of vandalism. The Board concluded that the incident lacked the severity to intimidate nonstriking employees from crossing the picket line, referencing precedents that required more serious misconduct for reinstatement denial. The ALJ also examined another incident involving Tafoya, where a nonstriker, Joseph Mascarenas, was injured during a confrontation with strikers. The ALJ determined Tafoya merely urged the strikers to deescalate and did not participate in the fight, corroborated by Mascarenas's testimony.
Medite contested the credibility of the Board's findings regarding Tafoya, citing issues with witness sequestration and the admissibility of videotape evidence. However, the Board's rulings on these matters were upheld, and the conclusion was affirmed that Tafoya’s actions did not constitute serious misconduct warranting denial of reinstatement.
Medite contends that the Board incorrectly determined that it lacked a good faith belief regarding Max Salazar's serious misconduct, which would have made him ineligible for reinstatement. The ALJ found evidence of Salazar shouting obscenities at Margaret Espinosa but noted that his personnel file contained no record of these complaints. The Board supported the ALJ's conclusion, citing insufficient evidence from Medite’s personnel department to corroborate claims made by Medite's personnel director regarding Salazar's reinstatement being affected by these complaints. Regarding the incident with Mike Griego, the ALJ found Salazar to be a credible witness compared to Griego, whose testimony was deemed unreliable. The Board's acceptance of the ALJ's credibility determination is upheld, as no extraordinary circumstances warrant reversal.
Additionally, Medite’s treatment of striker D. Mueller is examined. In August 1991, Medite sent Mueller a letter about a job opening, indicating that failure to respond by a certain date would lead to assuming he was not interested in reinstatement. After Mueller did not contact the personnel director, the position was filled by another candidate. Although Mueller later expressed a desire to return to work, Medite argued that its letter constituted an offer of reinstatement. However, both the ALJ and the Board found this interpretation incorrect, concluding that the letter was ambiguous and did not represent a true offer of reinstatement, leading to a violation of the Act for failing to reinstate Mueller after his unconditional return request.
Mueller's case involves an examination of whether a letter constituted an unconditional offer of reinstatement. Although the letter mentioned "reinstatement" and indicated that failure to respond would result in the position being offered to someone else, it did not clearly extend an unconditional offer to Mueller. The comparison to the NLRB v. Betts Baking Co. case highlighted that the letters were fundamentally different. The Betts letter explicitly offered reinstatement along with a clear directive to report to work, while Mueller's letter lacked such clarity. As a result, it was determined that the letter did not represent an unconditional offer of reinstatement, and Medite's failure to reinstate Mueller after he made an unconditional offer to return to work violated the Act. The Board's order was upheld, denying review and granting enforcement.
Additionally, the excerpt touches on procedural aspects regarding the presence of discriminatees during hearings, the factors influencing replacements' expectations of recall, and the broader implications for former strikers' reinstatement rights, clarifying that the letters did not restrict their applications to only their previous positions. Key issues regarding individuals Cordova, Coca, and Montoya were remanded for further consideration.
Medite justifies its decision to bar former strikers from the plant due to past violence and sabotage experienced during the strike, asserting that no such issues occurred post-strike and that there is no evidence linking the charging parties to specific violent acts. The Board supported Medite's belief that Perry Salazar and Tafoya engaged in strike misconduct, while the ALJ found Tafoya credible in denying involvement in a third incident. Testimony indicated that Tafoya did not physically assault Mascarenas. The ALJ concluded that Salazar's behavior towards Espinosa, characterized by crude remarks without threats, did not constitute serious misconduct justifying reinstatement denial. The Board has previously ruled that similar crude behavior does not meet the threshold for serious misconduct, reinforcing this view with Eighth Circuit precedent that reinstatement is often awarded unless there are actual threats of violence. Medite's assertion regarding inconsistencies in Mueller's testimony is deemed irrelevant to the analysis.
