McGaw of Puerto Rico, Inc. v. N.L.R.B.

• Decision Date: 10 September 1997
• Docket Number: No. 96-2288,96-2288
• Citation: 135 F.3d 1
• Parties: McGAW OF PUERTO RICO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

135 F.3d 1

McGAW OF PUERTO RICO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 96-2288.

United States Court of Appeals, First Circuit.

Heard Sept. 10, 1997.

Decided Dec. 10, 1997.

Francisco Chevere with whom Ariadna Alvarez and McConnell Valdes, Hato Rey, PR, were on brief for petitioner.

Fred L. Cornnell, Supervisory Attorney, Alexandria, VA, with whom David A. Seid, Attorney, Juneau, AK, Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Euclid, OH, Aileen A. Armstrong, Deputy Associate General Counsel, Washington, DC, and National Labor Relations Board were on brief for respondent.

Before SELYA, Circuit Judge, ALDRICH and COFFIN, Senior Circuit Judges.

ALDRICH, Senior Circuit Judge.

The National Labor 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 findings ¹ 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 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 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.

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."

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 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 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...