USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 96-2288
McGAW OF PUERTO RICO, INC.,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
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ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
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Before
Selya, Circuit Judge,
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Aldrich and Coffin, Senior Circuit Judges.
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Francisco Chevere with whom Ariadna Alvarez and McConnell Valdes
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were on brief for petitioner.
Fred L. Cornnell, Supervisory Attorney, with whom David A. Seid,
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Attorney, Frederick L. Feinstein, General Counsel, Linda Sher,
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Associate General Counsel, Aileen A. Armstrong, Deputy Associate
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General Counsel, and National Labor Relations Board were on brief for
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respondent.
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December 10, 1997
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ALDRICH, Senior Circuit Judge. The National Labor
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Relations Board ("the Board") asks us to enforce its decision
and order of October 31, 1996, finding that McGaw of Puerto
Rico, Inc. ("McGaw" or "the Company") engaged in various
unfair labor practices in violation of Sections 8(a)(1) and
(3) of the National Labor Relations Act ("the Act"). McGaw
responds that substantial evidence does not support the
Board's findings that it unlawfully discriminated against
employees because of their engagement in union activities
and/or to discourage others from such engagement. We
disagree, and grant the request for enforcement.
I. Factual Background
The record supports the Board's findings1 of the
following facts, arranged chronologically. McGaw has
manufactured medical devices and related products at a plant
in Sabana Grande, Puerto Rico, since 1974. With about 1100
employees working three shifts at the plant, McGaw is one of
the largest employers in the region. The Congreso de Uniones
Industriales de Puerto Rico ("the Union") has been trying to
organize McGaw's Sabana Grande workers since 1992. Several
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1. The Board completely adopted the findings of fact,
conclusions of law, and recommended order of the
administrative law judge ("the ALJ") who heard the case in
June 1995. The Board need not make independent findings or
conduct a separate analysis of the factors prompting the
order if it specifically adopts the findings and reasoning of
the ALJ. See, e.g., NLRB v. Horizon Air Servs., Inc., 761
___ ____ ____ _________________________
F.2d 22, 24 n.1 (1st Cir. 1985).
-2-
McGaw employees, including alleged discriminatees Charlie
Silva, Vigdalia Rodriguez, and Lourdes Irizarry -- all Line
Production Clerks ("LPCs") at the Company -- were active
leaders in the Union's efforts. Individually or as a group,
they distributed union authorization cards at the plant,
spoke to employees about the Union, acted as election
observers, delivered speeches over loudspeakers in front of
the plant, promoted the Union on a local radio program, wore
prounion stickers, and held union meetings at their homes.
The Company reorganized its engineering department
in 1992, eliminating, first, several mechanic positions and
later, four LPC positions. The affected employees were not
laid off, but, instead, reassigned to other positions. The
Company advised them by memo that "the elimination of these
positions was carried out taking into consideration several
factors such as general skills and abilities, seniority,
attitude and others concerning general performance."
The Union, by a narrow margin, won an election held
in February 1993. After 48 ballots were challenged, the
parties stipulated to a second election, to be conducted on
November 9 by the Board. In the meantime, McGaw was
undergoing significant operational reorganization. Ira
Marshall ("Marshall"), appointed General Manager at Sabana
Grande in July 1993, found the existing operations a
"disorganized mess" and set about a multi-million dollar
-3-
overhaul of the plant's production system. Central to the
reorganization of the Company's operations was the phased
replacement of its "workcell" production method with a
conveyor belt system. Under the workcell system, each
employee completely assembled a given product. LPCs liaised
between supervisors and production employees, keeping track
of production by performing largely clerical tasks. Under
the new conveyor system, each employee performed a discrete
partial assembly step. LPCs often worked the conveyor belt
alongside production employees during the transition,
although installation of the belts rendered obsolete much of
their clerical responsibilities.
In October 1993, the Company laid off some 140
employees as part of its restructuring. Preceding the
layoff, Human Resources Manager Alex Solla informed the
employees by memo that "[s]eniority (employment date) by
classification and general performance are the criteria used
in order to determine affected employees," and that "hourly
employees affected and having more seniority in the
organization will be offered the opportunity of
bumping/replace [sic] other employees with less seniority in
Assembler I positions." In the same month, the Company
closed its sterilization department and transferred about ten
affected employees to production.
-4-
In the following month, McGaw installed its first
conveyor belt. Also, the Board conducted its second
election, in which the Union failed to get a majority vote.
Weeks before the election, a Company supervisor had asked LPC
Maria Belen whether she had been "promoting the Union amongst
the employees." Company officials also asked her why she had
not identified herself as a non-union employee by wearing a
"NO" sticker, to which she replied that she considered
herself a key person among employees and that wearing such a
sticker might create friction within the Company.
Restructuring continued in February 1994, the
Company laying off close to twenty employees. Also in
February, the Company changed its LPC shift assignment policy
from classification seniority to plantwide seniority. The
Company notified affected employees of its "new change of
policy" by letter: "[p]ursuant to the seniority policy of our
company, we have restructured the assignment of work shifts
of the line production clerk position, in accordance to the
date when the incumbents in such position began working at
[the Company] (plant seniority)." LPCs Nilsa Nazario and
Vigdalia Rodriguez, forced to take less desirable shifts,
complained to management about the change and lack of prior
notice. At a February 28 meeting with a supervisor,
Rodriguez asked about the change, and received the vague
explanation that "Company policy had changed a while back."
-5-
Sometime in February or March, a supervisor asked
LPC Raquel Gonzalez, a member of the "Vote No" group, to
report to management any future union activity of LPC Lourdes
Irizarry known to Gonzalez. Gonzalez promised to comply, but
never in fact reported anything about Irizarry.
In a conversation on or about March 10, Human
Resources Manager Solla told LPC Silva that he and other
employees "were mistaken with the union idea because if
Sabana Grande had been a large town, the Union would have
won. But since Sabana Grande was a small town, it was a town
with people with small minds. And that it would be easy for
the Company to scare people and get them to vote against the
Union."
Sometime in April, Production Superintendent
Geraldo Gonzalez asked LPC Belen "what kind of comments [she]
had overheard about the Union." He later told her that if
the Union "came back," McGaw's owners would not fight the
Union, but rather would close the plant without warning and
without paying workers for their final week of work.
Gonzalez further added that "the people that were laid off
for that reason would not be able to get work from other
companies because they would know that the reason for the
layoff was because of unions."
It became clear to Company management sometime
during the first half of 1994 that personnel changes would
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accompany the production transition. In a May 18 memo to
Solla, Marshall indicated his views as to the need for "less
unskilled people" under the conveyor system, the need to
establish a "new more technical and flat organization," and
the need to replace "many people that cannot adapt to the
technology." He instructed Solla to meet with Operations
Manager Juan Luis Santa to "develop a tentative plan to
organize and upgrade our human technical expertise . . . [and
that] this should be done by 610/94 [sic]."
Around the same time, the Union campaigned for a
third election. Union president Jose Figueroa, along with
LPCs Silva and Irizarry and mechanic Juan Vargas, arranged
for a May 29 meeting of prounion employees, held at a local
beach. A McGaw supervisor stood within visual range of the
meeting, and an employee who was in the "Vote No" group also
was seen nearby.
Management memos and documents dated shortly after
the May 29 Union meeting confirm the Company's determination
to eliminate LPC positions. In a June 8 memo to his
supervisor, Gary Sielski, Marshall indicated the anticipated
elimination of 10 LPC positions, stating that "[t]he
objective will be to discharge people by performance,
educational training, and seniority. We are doing this . . .
[because] [w]e need people with the discipline to manage the
[conveyor] system. They must also have the education to
-7-
learn to use the system and perform additional reporting and
record keeping." In a memo to Marshall the following day,
Operations Manager Santa stated that he had requested Human
Resources Manager Solla to "reduce ten (10) production line
clerks, based on performance, academic background, and
seniority," with the direction that the reduction occur no
later than the end of June. On June 13, Marshall submitted a
"Monthly Activity Report" to Sielski, setting forth the
Company's activities, plans, and priorities, and identifying
the elimination of the "union threat" as one of the Company's
priorities. The Report also stated the Company's plans to
"hire 39 people, 29 for increased production and 10 for
backlogged rework."
On or about June 22, Company officials, including
Marshall, Solla, and Employee Relations Manager Miriam
Figueroa, met with employees. According to LPC Rodriguez,
Marshall stated that "he did not want third parties involved
in the plant with them because [the employees] could talk
with them, or dialogue with them." She further testified
that Marshall stated that "neither the employees nor the
supervisors needed to talk about the Union, that the only
people that could talk about Unions were himself and Alex
Solla." LPC Silva testified that Marshall stated that the
Company had a lot of money to invest in employee salaries and
benefits, and that he "didn't want third parties to come in
-8-
order to obtain those benefits for the employees." Silva
recalled that Marshall said he "did not want to hear
employees talking in the hallways, whether it be pro or con,
for or against the Union, and that if there needed to be any
Union talk in McGaw it would be done between himself and Alex
Solla in his office." Silva also testified that Marshall
told the employees that "things were looking good" at the
company, that sales were up, and that "at the moment there
were no plans to fire or dismiss anybody."
Marshall claimed that, because emotions about the
Union were running high, he stressed to the employees at the
meeting that "no one was to be threatening anyone . . . for
supporting or not supporting the Union." He claimed that it
was Solla rather than he who told the employees that only he
and Solla were authorized to discuss the Union, and that the
statement referred to those management officials who were
authorized to speak on behalf of the Company regarding the
Union. Figueroa testified that Marshall informed the
employees that he would not allow any threats among
employees, and that anyone who felt threatened should speak
with Solla or him. Figueroa's testimony was consistent with
Marshall's insofar as it was Solla who had said that the only
management representatives allowed to "make any updates on
the Union" were Marshall and Solla.
-9-
Barely more than a week later, on June 30, the
Company laid off nine LPCs. The nine were laid off without
warning, and strictly according to plantwide seniority rather
than the manifold criteria listed in the Marshall and Santa
memos. Marshall testified that Santa, rather than he, was
responsible for the change, and claimed that Santa and Solla
had met with the Company's legal counsel, who advised them to
"just stick with Law 80"2 and go by "length of service."
Company officials conducted layoff interviews with the
affected employees, who were told that the layoffs were due
to restructuring. Several asked about being transferred to
other positions, as had been the Company's past practice.
They were told, variously, that "Company policy had changed,
and that they would no longer be doing it that way," "Company
policy is that if a job classification is eliminated, there
is no chance of relocation," "Company policy was no longer to
relocate people in lower positions, and that the policy had
changed," and "we don't have any openings at that time, and
if we do that, we would be violating Law 80." Following the
June layoff, the Company hired about 50 "temporary"
production employees, and would have refused to rehire any of
the laid-off employees as temporary employees had they asked.
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2. "Law 80" is Puerto Rico Public Law 80, 29 L.P.R.A.
185a-m. Law 80 addresses an employer's obligations in
reducing its workforce. The Company's claims with respect to
Law 80 are addressed below.
-10-
The Company installed two additional conveyor belts
in July 1994, and two more in April 1995.
II. Procedural Background
Pursuant to charges filed by the Union, the Board
issued a complaint and notice of hearing on March 24, 1995.
The complaint alleged that McGaw violated Section 8(a)(1)3 of
the National Labor Relations Act ("the Act"), 29 U.S.C.
158(a)(1), by soliciting employees to spy on and report
other employees' union activities, expressing to employees
the futility of engaging in union activities by telling them
it was easy to instill fear in them so that they would vote
against the Union, interrogating an employee concerning the
Union's activities at the Company's plant, threatening
employees with plant closure and loss of wages if they
supported the Union, threatening to "blackball" employees
regarding future employment opportunities if they supported
the Union, and prohibiting employees from talking about the
Union at the plant. The complaint further alleged that McGaw
violated Section 8(a)(3)4 of the Act, 29 U.S.C. 158(a)(3),
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3. Section 8(a)(1) provides that "[i]t shall be an unfair
labor practice for an employer to interfere with, restrain,
or coerce employees in the exercise of" their statutory
rights to self-organize, form, join, and assist labor
organizations, and engage in collective bargaining.
4. Section 8(a)(3) provides, in relevant part, that "[i]t
shall be an unfair labor practice for an employer by
discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or
discourage membership in any labor organization . . . ."
-11-
by changing its seniority policy from classification to
plantwide seniority and by laying off nine LPCs on June 30
because they joined and assisted the Union, and/or to
discourage employees from engaging in Union activities.
Named as discriminatees in the complaint were LPCs Jose Luis
Pacheco, Francisco Jusino, Raquel Gonzalez, Scipio Vega,
Lourdes Irizarry, Maria Belen, Charlie Silva, Vigdalia
Rodriguez, and Nilsa Nazario.5
The Company denied the allegations. After a full
hearing, the administrative law judge ("the ALJ") sustained
each of the Union's allegations, finding as a matter of law
that McGaw had violated Sections 8(a)(1) and (3) of the Act.
Following these findings was a detailed remedy and
recommended order. McGaw timely excepted, and a three member
panel of the Board affirmed the ALJ's rulings, findings, and
conclusions, and adopted his order with slight modification.
The Board ordered McGaw to cease and desist, and to reinstate
and make whole those unlawfully laid off. We have
jurisdiction over McGaw's appeal pursuant to Sections 10(e)
and (f) of the Act, 29 U.S.C. 160(e) and (f).
III. Discussion
A. Standard of Review
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5. At the hearing, the Company and Irizarry entered into a
private settlement agreement, approved by the ALJ, whereby
Irizarry waived her right to reinstatement. Various other
complaint allegations were settled or otherwise disposed of
at the hearing.
-12-
"We will enforce a Board order if the Board
correctly applied the law and if substantial evidence on the
record supports the Board's factual findings." Union
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Builders, Inc. v. NLRB, 68 F.3d 520, 522 (1st Cir. 1995); see
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also, e.g., Sullivan Bros. Printers, Inc. v. NLRB, 99 F.3d
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1217, 1221 (1st Cir. 1996). As long as the Board's
interpretation of applicable statutes is "reasonably
defensible," Kelley v. NLRB, 79 F.3d 1238, 1244 (1st Cir.
______ ____
1996), we will uphold the Board's conclusions of law "even if
we would have reached a different conclusion." Union
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Builders, 68 F.3d at 522; see also Providence Hosp. v. NLRB,
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93 F.3d 1012, 1016 (1st Cir. 1996) ("[A]ppellate courts
ordinarily should defer to the Board's interpretations of the
statutes it must enforce, such as the NLRA, whenever such
interpretations flow rationally from the statutory text.");
Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir.)
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("The court may not substitute its judgment for that of the
Board when the choice is between two fairly conflicting
views, even though the court would justifiably have made a
different choice had the matter been before it de novo
________
. . . ." (internal quotations omitted)), cert. denied, 464
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U.S. 892 (1983).
The Board's findings of fact are "conclusive" if
"supported by substantial evidence on the record considered
as a whole." 29 U.S.C. 160(e). "'Substantial evidence is
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more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'" Penntech Papers, 706 F.2d at 22 (quoting
________________
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)).
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In determining whether such substantial evidence exists, we
"must take into account whatever in the record fairly
detracts from the Board's fact finding as well as evidence
that supports it." Id. (internal quotations omitted). We
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will "sustain inferences that the Board draws from the facts
and its application of statutory standards to those facts and
inferences as long as they are reasonable." NLRB v.
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Laverdiere's Enters., 933 F.2d 1045, 1050 (1st Cir. 1991).
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Finally, "[t]he ALJ's credibility determinations are entitled
to great weight since he saw and heard the witnesses
testify." Holyoke Visiting Nurses Ass'n v. NLRB, 11 F.3d
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302, 308 (1st Cir. 1993); see also NLRB v. Horizon Air
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Servs., Inc., 761 F.2d 22, 25 (1st Cir. 1985).
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B. Section 8(a)(1) Violations
Whether by oversight or admission, McGaw has not
here contested the Board's findings that it violated Section
8(a)(1) by soliciting employees to spy and report, making
union activity appear futile, interrogating employees,
threatening plant closure and loss of wages, threatening to
"blackball" union supporters, and prohibiting employees from
talking about the union. By failing to contest these
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findings, McGaw has waived its right to object to them as
erroneous. See Horizon Air Servs., 761 F.2d at 26. Further,
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the unlawful practices underlying these uncontested findings
"do not disappear by not being mentioned in [McGaw's] brief,"
but rather remain to inform our consideration of the Board's
other findings. NLRB v. Clark Manor Nursing Home Corp., 671
____ ______________________________
F.2d 657, 660 (1st Cir. 1982).
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C. Section 8(a)(3) Violations
It is an unfair labor practice "for an employer by
discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or
discourage membership in any labor organization." 29 U.S.C.
158(a)(3). Whether an employer's action adverse to
employees is a 8(a)(3) violation turns on the employer's
primary motivation. See generally NLRB v. Transportation
___ _________ ____ ______________
Management Corp., 462 U.S. 393, 397-403 (1983). If the goal
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is to discourage union activity, there is a violation. If
there is no anti-union motive, or if the same action would
have been taken based on some other, non-discriminatory,
motive, there is no violation. Motive may be inferred from
both direct and circumstantial evidence. See NLRB v. Pilgrim
___ ____ _______
Foods, Inc., 591 F.2d 110, 118 (1st Cir. 1978).
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The General Counsel makes a prima facie showing of
unlawful discrimination by establishing: (i) protected
activity by employees; (ii) the employer's knowledge of this
activity; (iii) the employer's animus toward unions; and (iv)
a causal connection between the animus and the action taken
against employees. See Carry Cos. of Illinois, Inc. v. NLRB,
___ ____________________________ ____
30 F.3d 922, 927 (7th Cir. 1994); see also Pilgrim Foods, 591
___ ____ _____________
F.2d at 118. In other words, the General Counsel must prove
at the outset that "the employee's protected conduct was a
substantial or motivating factor for the discharge" or other
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adverse action. Horizon Air Servs., 761 F.2d at 27. The
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burden then shifts to the employer to prove, by a
preponderance of the evidence, that it had another motive
that was both legitimate (non-pretextual and based on other
than protected conduct) and primary (would have produced the
same outcome regardless of the protected activity). See
___
Transportation Management, 462 U.S. at 400-05; see also,
__________________________ ___ ____
e.g., Horizon Air Servs., 761 F.2d at 27.
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Doggedly, McGaw attacks each element of the prima
facie case. It first contends that not all of those laid off
engaged in protected activities, and that laying off the nine
LPCs did not eliminate all of the Union's active supporters,
some of whom were not LPCs. McGaw demands more than is
required. Some of those laid off -- Irizarry, Silva, and
Rodriguez -- clearly were among the Union's most ardent
supporters, and the Company need not lay off all union
supporters at once to violate 8(a)(3). See NLRB v.
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Instrument Corp. of Am., 714 F.2d 324, 330 (4th Cir. 1983).
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Ordering layoffs "for the purpose of discouraging union
activity or in retaliation against . . . employees because of
the union activities of some" violates 8(a)(3), even if
some of those laid off were neutral or even against the
union. Birch Run Welding & Fabricating, Inc. v. NLRB, 761
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F.2d 1175, 1180 (6th Cir. 1985); see also Merchants Truck
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Line, Inc. v. NLRB, 577 F.2d 1011, 1016 (5th Cir. 1978).
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McGaw then claims it did not know of the union
activities of those laid off, and in any case, harbored no
anti-union sentiment. This strains credibility. LPCs
Rodriguez, Irizarry, and Silva each were overt and active
Union supporters, both within and without the plant. Before
the ALJ, Company officials admitted to knowing as much and to
observing union activity at the plant. Further, McGaw failed
to explain credited allegations that Company officials
solicited an employee to spy and report on Irizarry's union
activities and, barely a month before the June layoffs,
observed the Union meeting at the beach where Silva and
Irizarry were present. Also, McGaw's denial of anti-union
animus falls flat in light of Marshall's comments about
dissolving the "union threat" and keeping "third parties" out
of the plant, the Company's attempts to spy on Irizarry and
to intimidate union supporters through interrogation and
various threats, the Company's interrogation of LPC Belen as
to her Union sentiments, as well as the Company's prohibition
of discussion of the Union among employees. Substantial
evidence supports the Board's findings of both knowledge and
anti-union animus.
Closing its assault on the General Counsel's prima
facie case, McGaw argues that, because both Union and Company
supporters were laid off, a sufficient causal connection
between any anti-union animus and its actions is absent. As
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noted, adverse action may be unlawfully discriminatory
whether or not all union adherents suffer at once. See Birch
___ _____
Run Welding & Fabricating, 716 F.2d at 1180; Merchants Truck
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Line, 577 F.2d at 1016. In any case, McGaw misses the mark;
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it is the departure from past Company practices, in
combination with the LPC layoffs, that the Board found to be
a violation. It is undisputed that, had McGaw used
classification seniority to effectuate the June layoffs, LPCs
Irizarry, Rodriguez, and Belen would not have been laid off.
Also, McGaw inexplicably departed from its past practice of
relocating, rather than laying off, workers when a position
was phased out. This occurred at a time when its managers
expressed the need for "less unskilled people" under the
conveyor system and more people with the "education to learn
to use the system and perform additional reporting and record
keeping," and at a time when it planned to hire about 40
people for production and rework (and in fact hired about 50
"temporary" production employees following the layoff).
These facts, together with McGaw's knowledge of Irizarry's
and Rodriguez's union activities, its suspicion of Belen's
union sentiments, and its anti-union animosity, support the
Board's inference that McGaw changed its LPC seniority policy
in February 1994 if not to discriminate immediately against
union supporters then to lay the groundwork for the eventual
termination of key union leaders in the LPC position. We
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reject McGaw's position that no causal connection existed,
and instead accept the Board's conclusion that such adverse
action, calculated to affect key Union leaders, unlawfully
discriminated against Union activists and/or was taken to
discourage others from supporting the Union.
Prepared for rejection of its first round of
argument, McGaw responds that legitimate business reasons
would have led it to lay off the nine LPCs, regardless of any
union animosity. The Board accepted that the Company's
production transition inevitably would render obsolete many
of the LPCs' traditional functions, and we do not disagree.
But again, McGaw misses the point. The issue is not whether
McGaw had a primary nondiscriminatory reason for the layoffs
generally, but rather whether it had such a reason to depart
from its past practices, departures which appear to have been
calculated to adversely impact employees engaged in protected
activities. See Birch Run Welding & Fabricating, 761 F.2d at
___ _______________________________
1181 (noting that "an employer's deviation from past
practice" is persuasive evidence of an unlawful motive); cf.
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Transportation Management Corp., 462 U.S. at 404
___________________________________
(highlighting employer's departure from its usual practice);
Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 814 (3d Cir.
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1986) (same), cert. denied, 481 U.S. 1069 (1987); Merchants
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Truck Line, 577 F.2d at 1016 (same). To this, McGaw
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persistently but rather lamely maintains that it never
-20-
changed policies at all. We must reject this; not only do
the Company's past practices and statements, recounted above,
indicate the opposite, but the ALJ found McGaw's sole witness
on this issue -- Miriam Figueroa -- not to be credible. The
Board did not disturb this credibility finding; nor do we.
Thus, McGaw's explanation for the layoffs, although plausibly
non-discriminatory, does not explain why the Company changed
its seniority and relocation policies.
Finally, McGaw points to Puerto Rico Public Law 80,
29 L.P.R.A. 185a-m ("Law 80"), as requiring it to make
layoffs according to plantwide seniority. Despite the weight
of the evidence, McGaw maintains that it has always used
plantwide seniority, in accordance with Law 80, in
effectuating layoffs. Its unstated argument, apparently, is
that even if this is found not true, its switch to plantwide
seniority from classification seniority was nondiscriminatory
because Law 80 required the change. The Board did not agree;
nor do we.
Law 80 entitles employees who are discharged
"without good cause" to severance compensation, calculated in
part by years of service. See 185a. "Good cause," in
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turn, includes the full, temporary, or partial closing of the
employer's operations, 185b(d), technological or
reorganization changes, 185b(e), and reductions in
employment made necessary by a reduction in the anticipated
-21-
or prevailing volume of production, sales, or profits at the
time of the discharge, 185b(f). In any of these three
circumstances, the employer has a
duty . . . to retain those employees of
greater seniority on the job with
preference, provided there are positions
vacant or filled by employees of less
seniority in the job within their
occupational classification which may be
held by them . . . except . . . in those
cases in which there is a clear and
conclusive difference in favor of the
efficiency or capacity of the workers
compared, in which case the capacity
shall prevail . . . .
185c. McGaw clings to this provision as a statutory
command to use plantwide, rather than classification,
seniority.
The meaning of 185c is less than clear. The word
"job" could refer to employment generally (i.e.,
"plantwide"), or to employment in a specific position. The
Guidelines for the Interpretation and Application of Law 80,
May 30, 1976 ("Guidelines"), promulgated by the Puerto Rico
Department of Labor and Human Resources, indicate the former,
although they are nevertheless ambiguous as to the meaning of
185c. On the one hand, the Guidelines say:
If there is a need to dismiss employees
within any or some occupational
classifications, the employer will be
obligated to retain with preference in
said classifications the employees with
the greatest seniority in the company,
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and to that effect all the time worked
continuously and uninterruptedly for the
company will be considered, regardless of
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the occupational classifications where
they were performed.
Guidelines, 9 (emphasis added). On the other hand, the
Guidelines say: "When the employer needs to lay off workers
. . . he does not necessarily have to do so following an
order of seniority since the law does not require this." Id.
___
at 10.6
Whatever the meaning of 185c, its role within the
scheme of Law 80 and Law 80's relation to federal labor law
suggest that Law 80 does not have the effect that McGaw seeks
to give it. First, as we have previously noted, Law 80 does
not require an employer to use plantwide seniority, but
merely provides employees with an action for severance pay if
discharged "without good cause." See Rodriguez v. Eastern
___ _________ _______
Air Lines, Inc., 816 F.2d 24, 28 (1st Cir. 1987). Thus,
________________
whether Law 80's seniority provision, whatever its meaning,
has been complied with is relevant only to the existence of
____________________
6. We also note, in passing, the Guidelines' advisory that:
if the skills required to operate
machinery, to work new designs or to
adapt to new procedures can be easily
acquired through a simple and inexpensive
training the employer is under the
obligation to provide said training and
cannot fire the employees who need it
under penalty of being responsible under
Law No. 80.
Id. at 18. Insufficient facts have been adduced to determine
___
whether this provision applies in this case, although it does
suggest that McGaw may have had some duty to re-train the
affected LPCs.
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"good cause." Law 80 does not, as McGaw argues, require it
to use plantwide seniority, but at most merely says that if
it does not, it may have to provide severance pay. Cf.
___
Rivera v. Security Nat'l Life Ins. Co., 106 D.P.R. 517, 527
______ _____________________________
(1977). "[B]ut an employer willing to pay the price is free
to discharge whomever he or she pleases." Rodriguez, 816
_________
F.2d at 28. In short, "[a]lthough Law 80 obviously is
designed to assist those injured by arbitrary discharge
practices, there is every indication from its language and
other sources that the legislature intended to avoid direct
interference with the employer's business operation," id.,
___
including its seniority and relocation policies. McGaw's
practices and statements indicate that, before the June 1994
layoff, it used criteria other than plantwide seniority and
allowed senior affected employees to relocate. It would be
perverse indeed to allow it now to invoke a statute enacted
for the protection of workers as a justification for its
unlawful labor practices. Second, the Guidelines indicate
that "if [a] dismissal of an employee turns out to be an
illegal work practice, the applicable law is the Puerto Rico
Labor Relations Act or the National Labor Relations Act, as
the case may be." Guidelines, 11. Because McGaw's actions
were unlawful under the latter, that is the controlling
authority. Finally, McGaw does not direct us to any case law
interpreting Law 80 in a manner helpful to its argument.
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IV. Conclusion
We conclude that, because substantial evidence
supports the Board's findings, its order should be enforced.
The Board's findings of various 8(a)(1) violations are
summarily affirmed, given McGaw's failure to challenge them.
Further, we accept the Board's conclusion that substantial
evidence indicates that the challenged layoffs were motivated
primarily by anti-union animus and that McGaw's
justifications for the particular layoffs at issue are
insufficient. Although McGaw may have had a legitimate
reason for the LPC layoffs generally, it had no such reason
for its changes in policy, which, together with the layoffs,
adversely affected leading union activists and/or were taken
to discourage others from supporting the Union. Viewed in
light of McGaw's anti-union animus, we have no trouble
accepting that the layoffs constituted unlawfully
discriminatory labor practices under the Act. Given McGaw's
contention that the LPC position no longer exists at its
plant, we leave the issue of reinstatement to compliance
proceedings.7 Cf. Holyoke Visiting Nurses Ass'n, 11 F.3d at
___ ______________________________
308; NLRB v. Globe Mfg. Co., 580 F.2d 18, 21-22 (1st Cir.
____ _______________
1978).
____________________
7. The Board ordered McGaw to "offer [the discriminatees]
full . . . reinstatement to their former jobs or, if those
jobs no longer exists [sic], to substantially equivalent
positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed."
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The order of the Board shall be enforced.
_________________________________________
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