Medite of New Mexico, Inc. v. N.L.R.B., No. 94-9575

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore ANDERSON, HENRY, and BRISCOE; STEPHEN H. ANDERSON
Citation72 F.3d 780
Decision Date07 December 1995
Docket NumberNo. 94-9575
Parties151 L.R.R.M. (BNA) 2023, 131 Lab.Cas. P 11,466 MEDITE OF NEW MEXICO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Perry R. Salazar; Leroy Cordova; Arturo Tafoya; Max Salazar; Benny Coca; William Cordova; Karl Mueller; Pete Montano; Homer Jones; Feliverto A. Casias; Manuel Sanchez; George Montoya, Intervenors.

Page 780

72 F.3d 780
151 L.R.R.M. (BNA) 2023, 131 Lab.Cas. P 11,466
MEDITE OF NEW MEXICO, INC., Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
Perry R. Salazar; Leroy Cordova; Arturo Tafoya; Max
Salazar; Benny Coca; William Cordova; Karl Mueller; Pete
Montano; Homer Jones; Feliverto A. Casias; Manuel
Sanchez; George Montoya, Intervenors.
No. 94-9575.
United States Court of Appeals,
Tenth Circuit.
Dec. 7, 1995.

Page 783

Nicholas J. Noeding (Margaret R. McNett, with him on the briefs), Hinkle, Cox, Eaton, Coffield & Hensley, Albuquerque, New Mexico, for Petitioner.

Steven F. Rappaport (Linda Dreeben, Supervisory Attorney; Frederick L. Feinstein, General Counsel; Linda Sher, Acting Associate General Counsel; and Aileen A. Armstrong, Deputy Associate General Counsel, with him on the brief), National Labor Relations Board, Washington, D.C., for Respondent.

Craig B. Fretwell, Northern New Mexico Legal Services, Las Vegas, New Mexico, for Intervenors.

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Petitioner Medite of New Mexico, Inc., seeks review of an order of the National Labor Relations Board ("Board") affirming in part, reversing in part and modifying the recommended Order of an Administrative Law Judge ("ALJ"), which found Medite had committed certain violations of the National Labor Relations Act ("Act") in connection with an economic strike at its plant. The Board has filed a Cross-Petition seeking enforcement of its order. We deny review and enforce the order.

BACKGROUND

Medite operates a fiberboard manufacturing plant in Las Vegas, New Mexico. Following an election, the Western Council of Industrial Workers ("Union") became the exclusive bargaining agent for the production and maintenance employees at the facility. When Medite and the Union were unable to reach a collective bargaining agreement, 60 of Medite's 103 employees began an economic strike on June 11, 1990. Among the strikers were employees Feliverto Casias, Benny Coca, Leroy Cordova, William Cordova, Homer Jones, Pete Montano, George Montoya, Karl Mueller, Max Salazar, Perry Salazar, Manuel Sanchez, and Arturo Tafoya. 1 Medite notified all strikers that they would be permanently replaced if they did not return to work. By the end of June, all strikers had been permanently replaced.

During the strike, a picket line was established along the sides of the road leading to the main entrance to Medite's plant. A number of incidents occurred in connection with the picket line and the strike which are detailed, as necessary, more fully below.

On October 24, the Union was decertified and the strike ended. When the strike and picketing ended, the Medite plant manager issued an order barring former strikers from entering the plant except for escorted access to claim personal items. In November and December of 1990, Casias, Coca, Leroy Cordova,

Page 784

William Cordova, Jones, Montano, Montoya, Max Salazar, Perry Salazar, and Tafoya each sent to Medite letters seeking reinstatement. Mueller did not make a formal request for reinstatement until September 17, 1991. Sanchez applied orally for reinstatement in mid-November by telephoning Medite's personnel director, James D. Stone. All but Mueller received the following response from Medite:

As you probably know, after you went on "strike" a replacement was hired to fill your position. Therefore, we are unable to return you to work.

In September, 1991, Medite posted a notice for employees to bid on a cutoff saw helper position, and selected Richard Martinez, who had been hired during the strike as a laborer, promoted to cutoff saw helper, and then returned to a laborer position after the strike ended. Medite did not offer the position to former striker Montano, who had worked as a cutoff saw helper when the strike began.

On four other occasions between March and November 1991, Medite filled vacant bander positions in the same way (promoting laborers hired during the strike) rather than offering to reinstate former striker Max Salazar, who had worked as a bander when the strike began. Former striker Tafoya had been a saw forklift operator when the strike began. In June 1991 and in April 1992 Medite promoted replacement laborers to fill vacant sander forklift operator positions. It did not offer either position to Tafoya. Former striker Perry Salazar had been a utility employee prior to the strike. Medite notified him in July 1991 that there was a vacant utility position. When Salazar told personnel director Stone that he wished to return to work, Stone told him to come to the plant on August 5. When he arrived on that date, Stone told Salazar that Medite had decided not to reinstate him because of his involvement in misconduct during the strike.

In August 1991, Medite sent the following letter to former striker Mueller, who had been a laborer when the strike began:

A job opening exists at the plant in the Laborer position classification. There are several eligible persons who may be eligible to fill this job. If you are interested in filling this position, please contact the undersigned (Personnel Manager Stone) on or before 4:00 PM on Tuesday, August 27, 1991.

If you do not contact us by this date, the Company will assume that you are not interested in reinstatement, and the position will be offered to another person.

Mueller signed a receipt acknowledging that he had received the August 21 letter on August 23. He did not contact Stone until September 3, at which time he telephoned Stone and told him he was interested in reinstatement. Stone told him that Medite had considered him uninterested in the job described in the letter since he had not responded by the date stated therein. Mueller thereafter wrote to Stone stating that he wished to return to work, and asking to be offered any future positions.

Medite never offered reinstatement to Casias, Coca, Leroy Cordova, William Cordova, Jones, Montano, Montoya, Sanchez, Max Salazar, or Tafoya. Except for the above contacts with Mueller and Perry Salazar, Medite has never offered reinstatement to either of them.

On August 13, 1991, Perry Salazar filed a charge with the Board, alleging that Medite violated Section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1) and (3), by failing to reinstate him. On January 14, 1992, Leroy Cordova, Tafoya, Max Salazar, Coca, William Cordova, Mueller, Montano, Jones, Casias, Sanchez, and Montoya all filed similar charges. The cases were consolidated and an ALJ conducted a hearing, following which the ALJ concluded that Medite had violated the Act by failing to reinstate Montano, Mueller, Max Salazar, Perry Salazar, and Tafoya; that Medite did not violate the Act by failing to reinstate Casias, Coca, Leroy Cordova, William Cordova, Jones, Montoya, and Sanchez because there were no vacancies in the positions that they had held prior to the strike, or in substantially equivalent positions; that Medite did not violate the Act by failing to allow Leroy Cordova, Jones, Casias, and Sanchez the opportunity to bid on vacancies posted by

Page 785

Medite that were open to bidding by all Medite employees.

A three-member panel of the Board reviewed the ALJ's recommended Order, and affirmed in part, reversed in part and modified the Order. It agreed with the ALJ's finding that Medite violated the Act by failing to reinstate Montano, Mueller, Max Salazar, Perry Salazar, and Tafoya, and that Medite did not violate the act by failing to reinstate Casias, Coca, Leroy Cordova, William Cordova, Jones, Montoya, and Sanchez. It reversed the ALJ, however, and concluded that Medite had violated the Act by failing to allow Leroy Cordova, Jones, Casias, and Sanchez the opportunity to bid on vacancies which Medite posted in its plant. The Board also remanded to the ALJ to determine whether William Cordova had effectively resigned from Medite and to determine whether Coca and Montoya had engaged in strike misconduct or, if they did, whether the misconduct was serious enough for them to lose the Act's protections. The Board's order requires Medite to cease and desist from engaging in the unfair labor practices; to reinstate Montano, Mueller, Max Salazar, Perry Salazar, and Tafoya and make them whole; to offer reinstatement and back pay to Leroy Cordova, Jones, Casias, and Sanchez if at the compliance stage of the proceedings it is determined that they were denied reinstatement because of Medite's failure to allow them to bid on job vacancies; and to post an appropriate notice. This petition followed.

Medite argues we should deny enforcement of the Board's Order because: (1) it was denied a fair hearing when the ALJ failed to sequester the General Counsel's witnesses while they testified about common events and when the ALJ failed to admit into evidence a videotape of certain picket line misconduct; (2) the General Counsel failed to satisfy his burden of proving that vacancies occurred into which Medite was obligated to reinstate certain of the strikers; (3) the Board erred in holding that Medite discriminated against former strikers in filling certain job vacancies; and (4) the Board misapplied the law regarding reinstatement of strikers who engaged in misconduct during the strike. Medite also argues it committed no violation with regard to Mueller.

DISCUSSION

Our standard for reviewing an order of the Board is clear: while we review legal determinations de novo, our standard for reviewing factual determinations is governed by 29 U.S.C. Sec. 160(e), which states that "findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." 29 U.S.C. Sec. 160(e); Facet Enters., Inc. v. NLRB, 907 F.2d 963, 969 (10th Cir.1990). The Supreme Court has described substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a...

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17 practice notes
  • Diamond Walnut Growers, Inc. v. N.L.R.B., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 20, 1997
    ...of striker misconduct before concluding that a striker has lost the protection of the Act. See, e.g., Medite of New Mexico, Inc. v. NLRB, 72 F.3d 780, 790 (10th Cir.1995). But that doctrine is not relevant to this case; petitioner, as we have noted, is not claiming that Munoz and Miller wer......
  • Consol. Commc'ns, Inc. v. Nat'l Labor Relations Bd., No. 14–1135
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 13, 2016
    ...during a long, contested strike where an employer attempts to continue operating with nonstrikers”); Medite of New Mexico, Inc. v. NLRB , 72 F.3d 780, 791 (10th Cir. 1995) (a “brief incident” in which several picketers gathered around a vehicle, called the driver a “scab,” and struck the ca......
  • Four B Corp. v. N.L.R.B., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 18, 1998
    ...fact if supported by substantial evidence on the record considered as a whole shall be conclusive.' " Medite of New Mexico, Inc. v. NLRB, 72 F.3d 780, 785 (10th Cir.1995). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."......
  • Albertson's, Inc. v. N.L.R.B., No. 97-9509
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 10, 1998
    ...supported by substantial evidence. While our review of the NLRB's legal determinations is de novo, see Medite of New Mexico, Inc. v. NLRB, 72 F.3d 780, 785 (10th Cir.1995), we uphold the NLRB's factual findings if they are supported by substantial evidence in the record as a whole. 29 U.S.C......
  • Request a trial to view additional results
17 cases
  • Diamond Walnut Growers, Inc. v. N.L.R.B., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 20, 1997
    ...of striker misconduct before concluding that a striker has lost the protection of the Act. See, e.g., Medite of New Mexico, Inc. v. NLRB, 72 F.3d 780, 790 (10th Cir.1995). But that doctrine is not relevant to this case; petitioner, as we have noted, is not claiming that Munoz and Miller wer......
  • Consol. Commc'ns, Inc. v. Nat'l Labor Relations Bd., No. 14–1135
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 13, 2016
    ...during a long, contested strike where an employer attempts to continue operating with nonstrikers”); Medite of New Mexico, Inc. v. NLRB , 72 F.3d 780, 791 (10th Cir. 1995) (a “brief incident” in which several picketers gathered around a vehicle, called the driver a “scab,” and struck the ca......
  • Four B Corp. v. N.L.R.B., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 18, 1998
    ...fact if supported by substantial evidence on the record considered as a whole shall be conclusive.' " Medite of New Mexico, Inc. v. NLRB, 72 F.3d 780, 785 (10th Cir.1995). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."......
  • Albertson's, Inc. v. N.L.R.B., No. 97-9509
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 10, 1998
    ...supported by substantial evidence. While our review of the NLRB's legal determinations is de novo, see Medite of New Mexico, Inc. v. NLRB, 72 F.3d 780, 785 (10th Cir.1995), we uphold the NLRB's factual findings if they are supported by substantial evidence in the record as a whole. 29 U.S.C......
  • Request a trial to view additional results

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