Monfort, Inc. v. N.L.R.B.
| Decision Date | 27 April 1992 |
| Docket Number | 91-9501,No. 7,No. 7-R,Nos. 90-9518,AFL-CI,L,P,7-R,7,s. 90-9518 |
| Citation | 965 F.2d 1538 |
| Parties | 140 L.R.R.M. (BNA) 2248, 140 L.R.R.M. (BNA) 2398, 60 USLW 2795, 121 Lab.Cas. P 10,187 MONFORT, INC., formerly known as Monfort of Colorado, Inc., and United Food and Commercial Workers,ocal Union, aka United Food and Commercial Workers,ocal Unionetitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John M. Husband of Holland & Hart, Denver, Colo. (Warren L. Tomlinson and Michael S. Beaver of Holland & Hart, Denver, Colo., Charles E. Sykes of Bruckner & Sykes, Houston, Tex., with him on the brief), for petitioner Monfort, Inc.
Martin D. Buckley of Berenbaum & Weinshienk, Denver, Colo. (A. Elizabeth Meyers of Berenbaum & Weinshienk, Denver, Colo., George R. Murphy, Gen. Counsel, Carol L. Clifford, Asst. Gen. Counsel, United Food and Commercial Workers Intern. Union, Washington D.C., with him on the brief), for petitioner United Food and Commercial Workers, AFL-CIO, Local Union No. 7-R.
Julie Broido, Sr. Atty. (Jerry M. Hunter, Gen. Counsel, D. Randall Frye, Acting Deputy Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Linda Dreeben, Supervising Atty. with her on the brief), N.L.R.B., Washington D.C., for respondent.
Before LOGAN, MOORE and BALDOCK, Circuit Judges.
Monfort, Inc. and United Food and Commercial Workers Union, AFL-CIO, Local Union No. 7-R ("Union") petition for review of an order of the National Labor Relations Board ("Board"). Monfort challenges the Board's finding that Monfort, when it reopened its Greeley, Colorado plant, unlawfully discriminated against former employees in hiring because of the former employees' Union activity and membership. 29 U.S.C. §§ 158(a)(1), (a)(3). The Union seeks review of the Board's remedy for these unfair labor practices. Additionally, Monfort seeks review of the Board's finding that Monfort unlawfully terminated James Little because of his Union activity. Id. § 158(a)(4). Finally, Monfort seeks review of the Board's remedy for Monfort's unfair labor practices relating to its activities leading up to the Union election that followed the reopening of the Greeley plant. Id. §§ 158(a)(1), (a)(3). General Counsel seeks enforcement of the Board's order in its entirety. 1 Our jurisdiction arises under 29 U.S.C. §§ 160(e), (f).
Initially, we address Monfort's challenge to the Board's finding that Monfort's hiring practices when it reopened its Greeley plant were unlawful. "[A]n employer who declines to hire employees solely because they are members of a union commits a [29 U.S.C. § 158(a)(3) ] unfair labor practice." NLRB v. Burns Int'l Sec. Servs., Inc., 406 U.S. 272, 280-81 n. 5, 92 S.Ct. 1571, 1578-79 n. 5, 32 L.Ed.2d 61 (1972). Accordingly, an employer may not discriminate against union members in its hiring decisions. See United Food & Commercial Workers v. NLRB, 768 F.2d 1463, 1475 (D.C.Cir.1985), enf'g, Spencer Foods, 268 NLRB 1483 (1984). In NLRB v. United States Postal Serv., 906 F.2d 482 (10th Cir.1990), we stated:
A violation of [29 U.S.C. § 158(a)(3) ] is established where General Counsel demonstrates that an employer's opposition to protected union activity was a motivating factor in a decision to take adverse action against an employee and the employer is unable to demonstrate that the adverse action would have been taken even absent the protected activity.
Id. at 486 (citing NLRB v. Transportation Management Corp., 462 U.S. 393, 403, 103 S.Ct. 2469, 2475, 76 L.Ed.2d 667 (1983)). Accord Wright Line, 251 NLRB 1083 (1980), enf'd, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). Both the ALJ and the Board purported to apply this test, commonly known as the Wright Line test, and all the parties agree that this is the governing standard. Conceding the finding by both the Board and the ALJ that General Counsel established a prima facie case, see Pet'r Monfort Brief at 13, Monfort's challenge relates solely to the second part of the analysis--i.e. whether Monfort rebutted the prima facie case.
Our review of the Board's finding that Monfort failed to rebut the prima facie case is limited. We must uphold the Board's factual findings if they are supported by substantial evidence in the record considered as a whole. 2 Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); United States Postal Serv., 906 F.2d at 486. While we must consider the findings of both the Board and the ALJ in our review of the record as a whole, our "standard of review is not altered in cases in which the ALJ and the Board reached contrary conclusions." Glaziers Local Union 558 v. NLRB, 787 F.2d 1406, 1411-12 (10th Cir.1986) (citations omitted). Nonetheless, "[e]vidence may properly be considered less substantial when the NLRB's administrative law judge, 'who has observed the witnesses and lived with the case,' has drawn conclusions different from those reached by the NLRB." 3 Cartwright Hardware Co., Inc. v. NLRB, 600 F.2d 268, 270 (10th Cir.1979) (quoting Universal Camera, 340 U.S. at 496, 71 S.Ct. at 468). See also NLRB v. First Nat'l Bank of Pueblo, 623 F.2d 686, 693 (10th Cir.1980).
On March 31, 1980, Monfort closed its Greeley plant resulting in the permanent layoff of all of its more than 800 production employees who were all represented by the Union. 4 By January 1982, Monfort had decided to reopen the plant. 5 In preparation thereof, Monfort developed hiring criteria for applicants which considered absenteeism, discipline, medical condition, accidents, interest and ability, days and hours of work, and attitude. 6 Significantly, the specific criteria relating to absenteeism, medical condition and discipline were based on objective factors and could only disqualify an applicant from being hired. 7
Monfort solicited employment applications from the general public for two days in January 1982, from former employees for two days in March 1982, and then from the general public continually beginning in May 1982. In total from January 1982 to November 1983, Monfort received 7,287 applications, of which 352 were from former employees. 8 The written application form did not require the applicant to provide the information necessary to determine whether the applicant met Monfort's objective hiring criteria.
When Monfort received an application from a former employee, it reviewed the former employee's personnel file. If the file disclosed that the former employee failed to meet the hiring criteria for absenteeism, discipline or medical condition, the former-employee applicant was disqualified without a personal interview. By contrast, Monfort had no way to prescreen new applicants (nonformer employees) based on Monfort's objective hiring criteria because the application did not elicit the necessary information.
During interviews, applicants were disqualified if they were unwilling to accept the terms and conditions of employment, or unwilling to work a particular job. Monfort also determined, at the interview, whether the applicant met the hiring criterion relating to attitude. 9 Monfort attempted to determine whether the applicant met the remaining hiring criteria through an authorization release form that Monfort would send to the applicant's former employers. Approximately 50% of the forms were returned by former employers. The applicants whose former employers did not return the form were presumed to meet the objective hiring criteria as long as Monfort did not have specific disqualifying information.
Of the approximately 50% of the forms that were returned by applicants former employers, only 25-50% had complete information. Monfort made no effort to follow up on the information submitted by new applicants' past employers. Thus, less that one quarter of the new applicants were evaluated based on a comparable amount of information as the former-employee applicants. Like the applicants whose former employers failed to return the forms, applicants whose former employers returned but did not complete the form were presumed to meet the hiring criteria unless Monfort had specific disqualifying information.
Even if the applicant's former employer returned the form completed, Monfort could not equally evaluate a new applicant based on its objective criteria. The form asked the former employer to rate the applicant in various job related categories and to provide information on absences, lost-time accidents, discharge or other discipline within the previous thirty-six months. "These forms sought only generalized information from past employers about an applicant's work history, attendance, discipline, and accident records, and they gave no guidance to employers about how to set forth such information in a manner permitting meaningful evaluation under [Monfort's] hiring criteria." 298 NLRB No. 16 at 22. Notably, the form did not request the specific information necessary for Monfort to apply its own objective hiring criteria. Like the other new applicants, Monfort presumed that applicants for whom it had received a completed form met the objective hiring criteria unless it received specific disqualifying information. Because of the lack of the form's specificity, however, the specific disqualifying information essentially had to be volunteered by the former employer.
Not only was Monfort's procedure substantially skewed in favor of new applicants by failing to evaluate them based on a comparable level of information that Monfort retained for former-employee applicants, even when Monfort had comparable information on a new applicant, it did not apply its objective criteria equally as compared to former-employee applicants. For example, because the form requested only the total number of absences for a three year period, Monfort could not accurately apply its "abs...
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