NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,479, MEDITE OF NEW MEXICO, INC. and PERRY R. SALAZAR et al., (Sep. 15, 1994), National Labor Relations Board, (Sep 15, 1994)

MEDITE OF NEW MEXICO, INC. and PERRY R. SALAZAR et al.

314 NLRB No. 183.Case Nos. 28-CA-11040, -11281-1, -2, -4, -6 through -10, -12, -13, and -19. September 15, 1994 George Christensen, Administrative Law Judge..

Before Gould, Stephens and Devaney.

Lewis Harris, for General Counsel. Craig Fretwell (Northern New Mexico Legal Services), Las Vegas, New Mexico, for Perry R. Salazar et al. Nicholas J. Noeding & Margaret R. McNett (Hinkle, Cox, Eaton, Coffield & Hensley), Albuquerque, New Mexico, for Medite.

Refusal to Reinstate--Economic Strikers--Job Vacancy Bidding.--Although seven former economic strikers were not entitled to reinstatement to the jobs they held prior to the strike because there were no vacancies, they were entitled to be free from discrimination when applying for other positions and, thus, were entitled to notice of job postings and to an opportunity to bid on, and be fairly considered for, those posted jobs. Thus, their employer acted unlawfully when it prevented four of the strikers from bidding on job vacancies. This finding was to extend to the three other strikers should it be shown on remand that one did not effectively resign and that the other two did not engage in strike misconduct serious enough to forfeit their right to reinstatement. Section 8(a)(3).

Back references: ¶4035.01 and 4045.701.

Hearings--Conduct of Hearing Officer--Sequestration of Witnesses.--An administrative law judge erred in failing to sequester the General Counsel’s witnesses, including the charging parties, during a hearing. Section 10(b).

Back reference: ¶5590.30.

Refusal to Reinstate--Economic Strikers--Misconduct as Defense.--Although an employer showed that it had a good-faith belief that two economic strikers engaged in strike misconduct, the conduct engaged in by them was insufficient to constitute misconduct that could reasonably tend to coerce or intimidate employees in the exercise of their rights under the NLRA. The two employees hit a foreman’s car with cardboard picket signs but did no damage to it. Thus, the employer’s good-faith belief of misconduct was not a defense to a failure to reinstate these employees to vacant and available positions upon their unconditional offers to return to work. Section 8(a)(3).

Back reference: ¶4045.8303.

Refusal to Reinstate--Economic Strikers--Discriminatory Motive.--An employer acted unlawfully by failing to reinstate five economic strikers to vacancies upon its receipt of unconditional offers to return to work. Section 8(a)(3).

Back reference: ¶4035.04.

From Text of Board’s Decision

The Board has considered the decision and record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [1] and conclusions, as modified below, and to adopt the recommended Order, as modified.

Introduction

The issues presented by the parties’ exceptions are whether the Respondent violated Sections 8(a)(1) and (3) of the Act by (1) failing to reinstate former economic strikers or (2) failing to give them an opportunity to bid on posted vacancies, after the former strikers had tendered unconditional offers to return to work. [2] We agree with the judge’s finding that the Respondent violated the Act by failing to reinstate P. Montano, K. Mueller, M. Salazar, P. Salazar, and A. Tafoya. We also agree with the judge that the Respondent did not violate the Act by failing to reinstate F. Casias, B. Coca, L. Cordova, W. Cordova, H. Jones, G. Montoya, and M. Sanchez because there were no vacancies in the positions that these individuals held prior to the strike, or in substantially equivalent positions. [3]

However, contrary to the judge, we find that the Respondent violated the Act by failing to allow L. Cordova, H. Jones, F. Casias, and M. Sanchez an opportunity to bid on vacancies posted by the Respondent that were open to bidding by all of its employees regardless of their current or, as in the case of the strikers, their past jobs. This finding will also extend to W. Cordova, [4] providing that it is determined that he did not effectively resign from the Respondent’s employ, and to Coca and Montoya, providing that they did not engage in the alleged strike misconduct, or that, if they did, the misconduct was not serious enough to cause them to lose the Act’s protection. The judge, in light of his finding that there was no merit in the opportunity-to-bid allegations, did not pass on these provisional issues. Thus, we remand to the judge to determine whether, based on untainted evidence, [5] Coca and Montoya engaged in strike misconduct and, if they did, whether they forfeited their right to reinstatement.

1. Alleged strike misconduct of P. Salazar and A. Tafoya

The Respondent has excepted to the judge’s findings that the Respondent did not have a good-faith belief that P. Salazar and A. Tafoya engaged in strike misconduct that would interfere with or coerce employees in the exercise of their Section 7 rights. Although we agree that the Respondent did establish that it held a good-faith belief that P. Salazar and A. Tafoya engaged in strike misconduct, we find that the actual conduct was not serious enough to preclude P. Salazar’s and Tafoya’s reinstatement.

Upon unconditional offers to return to work, former economic strikers are entitled to reinstatement to their former, or substantially equivalent, positions, as the positions become vacant and available. NLRB v. Fleetwood Trailer Co., [56 LC ¶12,347] 389 U.S. 375 (1967); NLRB v. Great Dane Trailers, [55 LC ¶11,973] 386 U.S. 26 (1967). An employer, however, may refuse to reinstate a former striker if the employer has a good-faith belief that the former striker engaged in strike misconduct that may reasonably tend coerce or intimidate employees in the exercise of their Section 7 rights, including their right to refrain from striking or from supporting the strikers. Clear Pine Mouldings, [1983-84 CCH NLRB ¶16,083] 268 NLRB 1044 (1984), affd. 765 F.2d 148 (9th Cir. 1985), cert. denied 474 U.S. 1105 (1986). The employer’s good-faith belief may be based on a CB complaint issued by the Region alleging strike misconduct. Gem Urethane, 284 NLRB 1349, [1986-87 CCH NLRB ¶18,901] 1353 (1987). [6] If the employer establishes that it has such a good-faith belief, then the burden shifts to the General Counsel to show that the alleged discriminatee did not, in fact, engage in the alleged misconduct or that the conduct was not serious enough to deny the discriminatee the protection of the Act. Id.

In this case, the judge found that P. Salazar and A. Tafoya, among other strikers, struck a foreman’s vehicle with their cardboard picket signs while the vehicle was stopped at the picket line, but that the vehicle was not damaged during this incident. Later the same day, P. Salazar exchanged words with the owner of the vehicle, Ortiz, because Ortiz was following Salazar’s car. Based on this conduct and reports of other conduct, including an incident on June 20, 1990, Region 28 issued a CB complaint alleging that the union violated Section 8(b)(1)(A) of the Act. The judge found that these were the only incidents of misconduct involving P. Salazar and A. Tafoya. [7]

After the union was decertified, the CB case settled. The settlement agreement included a nonadmissions clause. As the Board held in Gem Urethane, settlement of the CB case precludes its use as evidence of actual misconduct, but the Respondent can still use the issuance of the complaint in the CB case to establish its good-faith belief that misconduct occurred. 284 NLRB at 1353. The judge erred by not considering or discussing the CB case in his analysis of whether the Respondent had established its good-faith belief. We find that, based on the CB complaint, the Respondent did show that it had a good-faith belief that P. Salazar and A. Tafoya engaged in strike misconduct. This finding, however, does not end our inquiry.

Although we find that the Respondent showed that it had a good-faith belief that P. Salazar and A. Tafoya engaged in strike misconduct, we affirm the judge’s ultimate conclusion that the Respondent violated the Act when it failed to reinstate these former strikers because we find that the conduct engaged in by them is insufficient to constitute misconduct which may reasonably tend to coerce or intimidate employees in the exercise of their Section 7 rights. The conduct in this case is distinguishable from the strike misconduct in Clear Pine Mouldings and Gem Urethane. In Gem Urethane, the strikers blocked ingress to the plant, surrounded a car, held a baseball bat in a threatening manner, pounded on cars, threatened to kill and beat up nonstriking employees, threatened to blow up the plant, threatened to burn nonstrikers’ cars, and threatened to “get” the nonstrikers and their family members. 284 NLRB at 1353-1354. In Clear Pine Mouldings, the strikers carried clubs, tire irons, baseball bats, and ax handles and were accompanied by dogs. In addition, one striker swung a 2-foot long club at a nonstriking employee and struck a nonstriking employee’s car. 268 NLRB at 1047-1048. In both cases, the Board found that the misconduct could reasonably tend to coerce and intimidate employees in the exercise of their Section 7 rights. 284 NLRB at 1353 and 268 NLRB at 1047.

In contrast, in this case, Ortiz briefly stopped his car at the picket line because some children were playing in the road. The judge found that P. Salazar and A. Tafoya hit the foreman’s car with cardboard picket signs, but that they did not damage the car. Ortiz was able to pull away and enter the highway. We find that this brief incident does not amount to the type of serious conduct that would intimidate nonstriking employees from crossing the picket line and exercising their Section 7 rights. See Preterm, [1984-85 CCH NLRB ¶16,937] 273 NLRB 683, 698, 704 (1984) (adopting a judge’s finding that the allegation that strikers’ pounding on a nonstriker’s car was insufficient to constitute serious misconduct). Cf. Central Mack Sales, [1984-85 CCH NLRB ¶16,945] 273 NLRB 1268 (1984) (striker engaged in serious misconduct when he intentionally beat on a nonstriking employee’s car with a club, inflicting $200 in damage). In addition, P. Salazar’s brief exchange of words with Ortiz later that day, which included no threats by Salazar, does not disqualify Salazar from reinstatement. Gem Urethane, 284 NLRB at 1354 fn. 21. [8]

2. Failure to reinstate P. Montano

The Respondent excepts to the judge’s finding that the Respondent violated the Act by failing to offer P. Montano a vacancy that occurred in the cutoff saw helper position, the position that Montano held just prior to going out on strike. The Respondent argues that Montano’s position was filled by R. Martinez when Montano went on strike. Martinez had been hired as a laborer, was promoted to cutoff saw helper on November 13, 1990, was demoted to laborer, and was promoted again to cutoff saw helper on September 20, 1991. Montano tendered his unconditional offer to return to work on December 4, 1990. The judge found that Montano should have been reinstated to the cutoff saw helper vacancy filled by Martinez on September 20, 1991. We agree.

The Respondent explained that because of a general reduction in force, it cut the number of cutoff saw helpers and demoted Martinez to laborer. The Respondent argues that, under Aqua-Chem, [1987-88 CCH NLRB ¶19,432] 288 NLRB 1108 (1988), enfd. [116 LC ¶10,276] 910 F.2d 1487 (7th Cir. 1990), cert. denied 111 S.Ct. 2871 (1991), [9] the General Counsel failed to satisfy its burden to proof that Martinez had no reasonable expectancy of recall. We find no merit to this argument. This case is distinguishable from Aqua-Chem because Martinez was not laid off from a position but was demoted from the cutoff saw helper position to the position of laborer. Further, when the September 20, 1991 vacancy occured, Martinez was not automatically awarded the job. Instead, the Respondent posted the vacancy for bid by all of the employees. This contradicts the Respondent’s contention that Martinez could reasonably expect to be returned to that position and that therefore no real vacancy existed. Consequently, this reinstatement issue is governed by the established rule that strikers who have unconditionally offered to return to work are entitled to be reinstated to their former position when a vacancy occurs. See Laidlaw Corp., [1968-1 CCH NLRB ¶22,577] 171 NLRB 1366 (1968), enfd. [60 LC ¶10,272] 414 F.2d 99 (7th Cir. 1969), cert. denied [62 LC ¶10,681] 397 U.S. 920 (1970).

3. Discriminatory exclusion from job bidding

The judge found, and we agree, that vacanies did not occur in the jobs held prior to the strike by Casias, Coca, L. Cordova, W. Cordova, Jones, Montoya, and Sanchez, or in substantially equivalent positions. The judge also rejected the General Counsel’s and Charging Parties’ alternative argument that the Respondent violated the Act by denying these individuals the opportunity to bid on any job vacancies posted by the Respondent. For the following reasons, we reverse the judge’s finding on this issue.

The Respondent fills job vacancies in two ways. Vacancies in certain job groups are filled by automatically promoting employees within a set progesssion. [10] The remaining vacancies are filled through a bid procedure in which the vacancy is posted on a bulletin board for 5 days and any full-time active employee is permitted to bid for the job. Employees are allowed to bid on, and have been awarded, less skilled and lower paying jobs. The jobs are usually awarded to the most senior applicant, although the applicant’s qualifications are also considered. The successful applicant is given a 30-day trial period in the new position, and, if he is not performing satisfactorily, the Respondent will either agree to extend the trial period or will move the employee back to his former position.

The General Counsel demonstrated that the Respondent posted a number of job vacancies for bid after the above-named strikers tendered their offers to return to work. The former strikers were not informed of any of the job vacancies posted for bid. The General Counsel also showed that after the strike was over, and the Union was decertified, the Respondent’s plant manager issued instructions to deny access to the plant premises to the former strikers.

It is well established that economic strikers who have made an unconditional offer to return to work are entitled to full reinstatement to positions left vacant by the departure of permanent replacements. Laidlaw, supra. The Board has subsequently made it clear that unreinstated strikers are entitled to reinstatement only to the job position that they held just prior to the strike or to a substantially equivalent position. Rose Printing, [1991-92 CCH NLRB ¶16,918] 304 NLRB 1076 (1991). [11] An employer is not required to reinstate former strikers to positions that they are qualified to perform if those positions are not substantially equivalent to their former jobs. Id. at 1077; Highlands Medical Center, [1985-86 CCH NLRB ¶17,778] 278 NLRB 1097 (1986).

In Rose Printing, the Board described the purpose of these rules as ensuring that “strikers who have unconditionally offered to return to work are to be treated the same as they would have been had they not withheld their service. They are therefore entitled to return to those jobs or substantial equivalents if such positions become vacant, and they are entitled to nondiscriminatory treatment in their applications for other jobs.” 304 NLRB at 1078 (emphasis added). The Board went on to note that although former strikers are not guaranteed a preference for nonequivalent jobs, employers are not free to discriminate against them, by preferring new applicants or nonstrikers, simply because they had been on strike. Id. See also Oregon Steel Mills, [1988-89 CCH NLRB ¶15,172] 291 NLRB 185 fn. 1 (1988), enfd. mem. 134 LRRM 2432 (9th Cir. 1989), cert. denied [115 LC ¶10,143] 110 S.Ct. 2617 (1990) (respondent unlawfully failed to offer unreinstated strikers an opportunity to bid on job vacancies until after nonstrikers and strike replacements failed to bid on the jobs).

Applying these principles to the facts in this case, it is clear that the Respondent’s failure to allow the former strikers to bid on the vacancies posted for bid--a right extended to all other of its employees--constituted a form of discrimination against the former strikers. Although the former strikers were not entitled to reinstatement to the jobs they held prior to the strike because there were no vacancies, they were entitled to be free from discrimination when applying for other positions and, thus, were entitled to notice of job postings and to an opportunity to bid on, and be fairly considered for, those posted jobs. For these reasons, we find that the Respondent violated Section 8(a)(3) of the Act by preventing the Charging Parties from bidding on posted vacancies.

The Respondent contends that by accepting this theory, the Board is creating a new duty for employers, separate and distinct from the duty imposed by Laidlaw. We agree that the statutory obligation at issue here is different from the Laidlaw obligation, but we do not agree that it is new. This is not a matter of automatic reinstatement entitlement; it is a matter of being free from that discrimination in hire or tenure of employment which is expressly prohibited by Section 8(a)(3) and (1) of the Act. The Respondent surely would not argue that it would be proceeding lawfully under the Act if it announced after a strike that it was designating certain jobs as positions to which only those who had not engaged in the strike could aspire. The Respondent has engaged in analogous conduct here. By effectively prohibiting the former strikers from bidding on the posted vacancies through failing to notify them of job postings and denying them access to the plant, the Respondent discriminated against them on the basis of their former-striker status. This is discriminatory treatment that violates the Act quite apart from any Laidlaw obligation. Rose Printing, supra, 304 NLRB at 1078. [12]

4. Witness sequestration issue

The Respondent excepts to the judge’s failure to sequester the General Counsel’s witnesses while they were testifying about events to which others would also testify. We agree with the Respondent that, pursuant to Unga Painting, 237 NLRB 1306 (1978), the General Counsel’s witnesses, including the Charging Parties, should have been sequestered during such testimony. For the reasons discussed below, however, we find that the Respondent was not prejudiced in the presentation of its case regarding its failure to reinstate M. Salazar, P. Salazar and A. Tafoya, so there is no reason to disturb the findings concerning them. We remand to the judge for findings regarding B. Coca’s and G. Montoya’s involvement in strike misconduct. On remand, we direct the judge not to rely on evidence tainted by the failure to sequester the General Counsel’s witnesses.

In Unga Painting, the Board established its limited witness exclusion rule which excludes alleged discriminatees from the portions of the hearing when another of the General Counsel’s or charging party’s witnesses is testifying about events to which the discriminatees have, or will, or may, testify, unless the judge finds that special circumstances warrant the discriminatees’ unrestricted presence or total exclusion when not testifying. 237 NLRB at 1307. Failure to sequester witnesses, or the violation of a sequestration order, may result in the tainted testimony’s being stricken from the record (if a party can show that it was prejudiced by the failure to sequester), or in a stricter scrutiny of the tainted testimony.

In this case, the Respondent requested at the beginning of the hearing that the General Counsel’s and Charging Parties’ witnesses, including the Charging Parties themselves, be sequestered while other witnesses for those parties were testifying about common events. Without citing any special circumstances, the judge denied the Respondent’s request. The Respondent contends that the judge’s ruling prejudiced its presentation of the case, specifically with regard to showing that B. Coca, G. Montoya, M. Salazar, P. Salazar, and A. Tafoya engaged in strike misconduct. We find no merit to the Respondent’s claim regarding M. Salazar, P. Salazar, and A. Tafoya.

M. Salazar testified only to incidents involving himself, and none of the General Counsel’s other witnesses testified regarding M. Salazar’s conduct; thus, the Respondent was not prejudiced by M. Salazar’s presence during the hearing or by other witnesses’ presence during his testimony.

The judge found that P. Salazar and A. Tafoya struck Ortiz’ vehicle, but, as discussed above, we find that their actions were not serious enough to bar their reinstatement. Our finding does not rest on any evidence tainted by the failure to sequester the General Counsel’s witnesses. In addition, the judge’s finding regarding Tafoya’s role in the June 20, 1990, incident was based in part on the testimony of the Respondent’s witnesses--not merely on the testimony of the General Counsel’s witnesses. Finally, the judge found that Tafoya was not in a car with Montoya and Coca on July 11, 1990, that was allegedly involved in strike misconduct. The judge’s finding is based solely on Tafoya’s credibility. The judge did not rely on any of the General Counsel’s other witnesses to make this finding. Because the judge’s finding regarding P. Salazar’s and A. Tafoya’s conduct was not contradicted by, and in fact is supported by, the Respondent’s witnesses, we find that the Respondent was not prejudiced by the presence of P. Salazar and A. Tafoya during the entire hearing.

Because the judge found that there were no vacancies in their positions, the judge did not determine whether the Respondent had a good-faith belief that Montoya and Coca engaged in strike misconduct or whether Montoya or Coca, in fact, engaged in strike misconduct that would interfere with or coerce employees in the exercise of their Section 7 rights. We have found, however, that the Respondent violated the Act by preventing Montoya and Coca from bidding on posted vacancies. And, as discussed with respect to P. Salazar and A. Tafoya, we find that the Respondent established that it had a good-faith belief that Montoya and Coca engaged in strike misconduct as alleged in the CB complaint. We therefore remand Cases 28-CA-11281-6 and 28-CA-11281-19 to the judge to determine (1) whether the record shows that Coca and Montoya did not engage in the alleged strike misconduct and (2) if they did engage in the misconduct, whether the misconduct was serious enough to remove them from the protection of the Act. In remanding these issues, we direct the judge to rely only on evidence that was not tainted by the presence of the General Counsel’s and the Charging Parties’ witnesses during testimony of common events.