National Labor Relations Board v. Rockwood & Co.

834 F.2d 837
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 18, 1987
DocketNo. 87-7023
StatusPublished
Cited by1 cases

This text of 834 F.2d 837 (National Labor Relations Board v. Rockwood & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Rockwood & Co., 834 F.2d 837 (9th Cir. 1987).

Opinion

PREGERSON, Circuit Judge:

The employees of Rockwood & Company and W.H. Gonyea Trust No. 1-17 d/b/a Timber Products Company (collectively “the Company”) at its Medford, Oregon facility engaged in an economic strike during negotiations for a new collective bargaining agreement. After the strike collapsed, the Company committed numerous acts that were found by the National Labor Relations Board (“the Board”) to be unfair labor practices. The Company appeals from only three of the Board’s determinations: (1) the Board’s finding that the Company committed an unfair labor practice when it failed to reinstate twenty employees who were on layoff when the strike began, who were invited back to work, but who participated in picketing; (2) the Board’s finding of an unfair labor practice in the Company’s failure to reinstate four former strikers for work on a “spreader crew”; and (3) the Board’s finding of an unfair labor practice in the Company’s termination of Jose Acosta, a temporarily rein[839]*839stated employee who refused for medical reasons to take the job of cleaning glue tanks. The Board seeks enforcement of its order.

I. BACKGROUND

The Company and Local 3-436, International Woodworkers of America (“the Union”), which represents the workers in the Medford facility, have had a collective bargaining agreement since 1966. The most recent collective bargaining agreement between the parties expired on May 81, 1983. After negotiations for a new agreement were unsuccessful, the employees engaged in a work stoppage and strike beginning on August 19, 1983. Over twenty employees who were laid off before the strike participated in the picketing.

On September 21, the Company sent a letter to all the employees who walked out and to all the employees who were on layoff status when the strike began. The letter stated that the Company wanted to make the plant operative and that it would be taking job applications because it wished to permanently replace those who wished to continue to strike. The letter also suggested that employees wishing to return to work contact the Company immediately. By September 28, the Union gave up the strike and wrote to the Company communicating on behalf of all striking employees an unconditional offer to return to work.

On October 11, the parties arrived at a new collective bargaining agreement. The Company, however, refused to sign and honor the new agreement. In an earlier action, we upheld by an unpublished memorandum the Board’s finding that the Company’s failure to honor the agreement was an unfair labor practice.

On September 6, 1984, approximately eleven months after the parties arrived at the new agreement, the Company withdrew recognition from the Union. Thereafter, the General Counsel brought unfair labor practice charges against the Company, and the Board found that the Company had committed numerous unfair labor practices. Only three of those acts are at issue in this appeal.

II. DISCUSSION

We will enforce the Board’s order “if the Board correctly applied the law, and if the Board’s findings of fact are supported by substantial evidence on the record viewed as a whole.” NLRB v. Nevis Indus., Inc., 647 F.2d 905, 908 (9th Cir. 1981). The Board’s interpretation of the NLRA “is entitled to considerable deference.” Id. If the Board’s findings are supported by substantial evidence, we must enforce them, even if we might reach a different conclusion from the same evidence. Id.

Each of the unfair labor practice charges at issue in this appeal involves an employer’s duty to offer reinstatement to its employees after an economic strike.

The National Labor Relations Act (“NLRA”) includes within its definition of “employee” an individual “whose work has ceased as a consequence of, or in connection with, any current labor dispute ... and who has not obtained any other regular and substantially equivalent employment.” 29 U.S.C. § 152(3). Thus, a striker continues to be an employee within the meaning of section 152(3) until he or she has obtained substantially equivalent employment. While strikers may be permanently replaced during the strike, NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-46, 58 S.Ct. 904, 910-11, 82 L.Ed. 1381 (1938), once the strike is over they are entitled to reinstatement to available jobs. “If and when a job for which the striker is qualified becomes available, he is entitled to an offer of reinstatement. The right can be defeated only if the employer can show ‘legitimate and substantial business justifications.’” NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 381, 88 S.Ct. 543, 547, 19 L.Ed.2d 614 (1967) (quoting NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027 (1967)).

The Court in Fleetwood explained the legal basis for the reinstatement requirement as follows:

If, after conclusion of the strike, the employer refuses to reinstate striking [840]*840employees, the effect is to discourage employees from exercising their rights to organize and to strike guaranteed by §§ 7 and 13 of the Act. Under §§ 8(a)(1) and (3) it is an unfair labor practice to interfere with the exercise of these rights.

Fleetwood, 389 U.S. at 378, 88 S.Ct. at 546.

A. Reinstatement of Picketing Laid-off Employees

After the Company refused to recognize the union, it unilaterally terminated the reinstatement, seniority, and employment rights of all employees who were on layoff status when the strike began. The Administrative Law Judge (“AU”), whose order the Board affirmed, found that the laid-off individuals who were recalled but chose instead to picket were striking employees entitled to reinstatement. This holding is a correct application of the law and is supported by substantial evidence.

The critical question about individuals on layoff status when a strike is called is whether they are in fact “strikers” and thus continue to be “employees” under the NLRA. See Brinkerhoff Signal Drilling Co., 264 NLRB 348 (1982); Conoco, Inc., 265 NLRB 819, 821 (1982), enfd, 740 F.2d 811 (10th Cir.1984). In other words, the employees who were on layoff from the Company before the strike must be shown to have been individuals “whose work has ceased as a consequence of, or in connection with, any current labor dispute.” 29 U.S.C. § 152(3). To fall within this definition, these laid-off individuals must have had their ability to work for the Company curtailed by the strike. If the laid-off individuals fall within this definition, they are entitled to reinstatement.

All of the employees on layoff who picketed the Company had the ability to work for the Company during the strike.

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