Local 512, Warehouse and Office Workers' Union v. N.L.R.B.
| Citation | 795 F.2d 705 |
| Decision Date | 22 July 1986 |
| Docket Number | AFL-CIO,Nos. 85-7281,85-7355,s. 85-7281 |
| Parties | 122 L.R.R.M. (BNA) 3113, 42 Empl. Prac. Dec. P 36,793, 55 USLW 2081, 105 Lab.Cas. P 12,005 LOCAL 512, WAREHOUSE AND OFFICE WORKERS' UNION, International Ladies' Garment Workers' Union, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FELBRO, INC., Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Norman Krishman, Krishman & Harris, Los Angeles, Cal., Michael Rubin, Altshuler & Berzon, San Francisco, Cal., for petitioners.
Norman Bernstein, N.L.R.B., Washington, D.C., for respondent.
Petitions for Review of and to Enforce an Order of the National Labor Relations Board.
Before PREGERSON and BEEZER, Circuit Judges, and JAMESON, * Senior United States District Judge.
The National Labor Relations Board ("NLRB" or "Board") found that Felbro, Inc. had violated the National Labor Relations Act ("NLRA") by laying off certain workers and refusing to execute a collective bargaining agreement negotiated with Local 512, Warehouse and Office Workers' Union ("Local 512"). Many of Felbro's employees are undocumented alien workers. Relying on its reading of Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984), the NLRB conditioned its backpay order on proof at the compliance hearing that the workers whose labor law rights Felbro had violated ("discriminatees") are legally entitled to work in the United States. The NLRB petitions to enforce its order. Local 512 petitions for Substantial evidence in the record supports the NLRB's findings that Felbro violated the NLRA, and thus we enforce the liability portion of the NLRB's order. However, we also conclude that the NLRB's decision to condition Felbro's payment of backpay upon proof of each discriminated worker's legal status in the United States is inconsistent with both the NLRA and the immigration laws. For this reason, we deny enforcement of the remedy portion of the order and remand the order to the Board for appropriate modification.
review of the conditional remedy ordered by the NLRB. Felbro contests parts of both the liability and remedy sections of the order.
Felbro manufactures wire and tubular displays in South Gate, California. On August 5, 1981, Felbro's employees elected Local 512 as their bargaining agent in an NLRB-supervised election.
In a series of incidents immediately before and in the months after the election, Felbro supervisors changed working practices and laid off certain employees in ways that an Administrative Law Judge ("ALJ") found constituted several violations of sections 8(a)(1) and 8(a)(3) of the NLRA. The ALJ also found two violations by Felbro of both sections 8(a)(5) and 8(a)(1) of the NLRA. 1 First, in the period between the union election and the NLRB's certification of the result, Felbro temporarily laid off three employees without notifying Local 512 or giving it an opportunity to bargain over the layoff. Second, after extended discussions, negotiators for Felbro and Local 512 agreed on the terms of a three-year collective bargaining agreement, subject to ratification by the members of the bargaining unit. The ALJ found that the employees ratified the contract. Felbro contests the validity of the ratification, and asserts that, in any event, it repudiated the contract offer before Local 512 notified Felbro of the ratification. Felbro refused to execute the contract. The ALJ found this refusal a violation of section 8(a)(5). The Board affirmed the ALJ's conclusions with some modification. 274 N.L.R.B. No. 186 (Mar. 29, 1985). Felbro opposes only the finding of the two section 8(a)(5) violations.
Felbro reinstated all the laid-off employees before the ALJ's hearing. The discriminatees are all presently in the United States working for Felbro. As far as the record shows, no Felbro employee has been The ALJ recommended that the traditional NLRB remedy of reinstatement and backpay be afforded to those employees specifically discriminated against by Felbro, and that Felbro be required to implement retroactively the agreed collective bargaining agreement and to reimburse its employees for any loss in pay or benefits caused by Felbro's belated implementation of the contract's terms. The NLRB affirmed the ALJ's recommended remedy with respect to the two section 8(a)(5) violations, but amended the proposed remedy for the section 8(a)(1) and 8(a)(3) violations. In his opinion, the ALJ noted that several of the discriminatees were undocumented workers, and permitted them to testify under assumed names and to refuse to answer questions relating to their immigration status. Amending the ALJ's remedial order, the NLRB stated:
the subject of any INS deportation proceeding.
Subsequent to the issuance of the [ALJ's] decision, the Supreme Court issued its decision in Sure-Tan, Inc. v. NLRB, , 104 S.Ct. 2803 (1984), in which it held, inter alia, that while undocumented alien workers are employees entitled to the Act's protection, "in computing backpay, the employees must be deemed 'unavailable' for work (and the accrual of backpay therefor[e] tolled) during any period when they were not lawfully entitled to be present and employed in the United States." Because it appears that a number of the employees affected by the backpay order herein were undocumented aliens, we shall leave to the compliance stage the issue of the employees' entitlement to backpay consistent with the requirements of the Court's opinion in Sure-Tan.
274 N.L.R.B. No. 186, slip op. at 5.
Local 512 timely petitioned for review of the conditional terms in the remedy ordered by the NLRB. The NLRB timely cross-petitioned to enforce its order in its entirety. The Mexican-American Legal Defense and Educational Fund ("MALDEF") has filed a brief amicus curiae in support of Local 512.
We will enforce an NLRB order if it correctly applies the law and its factual findings are supported by substantial evidence in the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); US Ecology, Inc. v. NLRB, 772 F.2d 1478, 1480 (9th Cir.1985).
The NLRB has broad discretion in fashioning remedies that will "effectuate the policies" of the National Labor Relations Act. See NLRB v. J.H. Rutter-Rex Manufacturing Co., 396 U.S. 258, 262-63, 90 S.Ct. 417, 419-20, 24 L.Ed.2d 405 (1969). We will defer to the NLRB's broad authority to construe the NLRA unless the NLRB's decision is "irrational or inconsistent with the Act." NLRB v. Financial Institution Employees of America, Local 1182, --- U.S. ----, 106 S.Ct. 1007, 1013, 89 L.Ed.2d 151 (1986). However, we must not allow our deference to the NLRB "to slip into a judicial inertia which results in the unauthorized assumption ... of major policy decisions properly made by Congress.' " Id. (quoting American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965) ).
On August 22 or 24, 1981, Felbro laid off employees Armando Castaneda, Ramirez, and Santizo. The layoff was not discriminatory. However, Felbro did not notify Local 512 of its intention to lay off the three employees.
An employer violates section 8(a)(5) of the NLRA when it institutes a material change in the terms and conditions of employment in an area that is a compulsory subject of collective bargaining without giving the bargaining agent both reasonable notice and an opportunity to negotiate Felbro asserts two defenses. First, Felbro argues that the union waived its right to bargain over the layoffs because it received advance notice from other sources and failed to request that Felbro bargain over that issue. Second, Felbro contends that the layoffs were consistent with Felbro's past practice, and thus cannot constitute a unilateral change. Neither defense is meritorious.
about the proposed change. NLRB v. Katz, 369 U.S. 736, 747, 82 S.Ct. 1107, 1113, 8 L.Ed.2d 230 (1962); NLRB v. Merrill & Ring, Inc., 731 F.2d 605, 608 (9th Cir.1984). A unilateral layoff by an employer violates section 8(a)(5). See NLRB v. Carbonex Coal Co., 679 F.2d 200, 204 (10th Cir.1982); cf. Peerless Roofing Co. v. NLRB, 641 F.2d 734, 735 (9th Cir.1981) (unilateral change in pension provisions violates section 8(a)(5) ). Such unilateral action violates section 8(a)(5) even when, as here, it occurs before the union's certification by the NLRB. See Carbonex Coal, 679 F.2d at 205 (citing cases)
Felbro claims that "at least two employees" informed union steward Machuca about the layoffs. The record shows that employees Felipe Castaneda and Zacarias expressed "concerns" to Machuca that they "might" be laid off. Neither of these employees was in fact laid off by Felbro. Machuca was not informed of any actual layoffs until after they had occurred. "[M]ere suspicion or conjecture cannot take the place of notice where notice is required." ILGWU v. NLRB, 463 F.2d 907, 918 (D.C.Cir.1972); see also NLRB v. Royal Plating and Polishing Co., 350 F.2d 191, 195 (3d Cir.1965) (); NLRB v. Rapid Bindery, Inc., 293 F.2d 170, 176 (2d Cir.1961) () 2
Felbro also argues that it laid off the three employees in accordance with its established policy. Felbro relies on NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962) and Aaron Brothers Co. v. NLRB, 661 F.2d 750 (9th Cir.1981). In Katz, the Court held that unilateral changes in working conditions would not violate section 8(a)(5) if they were "a mere continuation of the status quo." 369 U.S. at 746, 82 S.Ct. at 1113. The merit wage increases at...
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