Mosher Steel Co. v. N.L.R.B.

• Decision Date: 27 February 1978
• Docket Number: No. 76-4516,76-4516
• Citation: 568 F.2d 436
• Parties: 98 L.R.R.M. (BNA) 2010, 83 Lab.Cas. P 10,398 MOSHER STEEL COMPANY, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 436

568 F.2d 436

98 L.R.R.M. (BNA) 2010, 83 Lab.Cas. P 10,398

MOSHER STEEL COMPANY, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 76-4516.

United States Court of Appeals Fifth Circuit.

Feb. 27, 1978.

Larry M. Lesh, Dallas, Tex., for petitioner, cross-respondent.

Elliott Moore, Deputy Assoc., Gen. Counsel, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, Marjorie S. Gofreed, Michael S. Winer, N.L.R.B., Washington, D. C., for respondent, cross-petitioner.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.

Before AINSWORTH, SIMPSON and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

This case is before the court on petition of Mosher Steel Company (Mosher) to review and set aside, and Cross-Petition of the National Labor Relations Board (Board) to enforce, that portion of the Decision and Order of the Board reported in 226 NLRB No. 180. The Board held that Mosher unlawfully refused to reinstate James Smothers, Douglas Wallace, and Juventino Buruato.

Because reinstatement is at issue it is necessary to consider the circumstances leading to the dismissal of the contested workers. On January 18, 1974, the Board certified the United Steelworkers of America, AFL-CIO (union), as bargaining representative for Mosher Employees working in plants located in Houston, San Antonio, Dallas, Lubbock and Tyler, Texas and Shreveport, Louisiana. From July 22, 1974 until May 10, 1975, the employees struck at all Mosher plants. At a following disciplinary hearing, the Board found that the strike was caused, in part, by unfair labor practices committed by Mosher. ¹ 220 NLRB No. 47, aff'd 532 F.2d 1374 (5th Cir. 1976).

During the course of the strike, union reaction to the unfair labor practices descended to the level of violence. As a result of this concerted conduct, it was found by an administrative law judge, and adopted by the Board, that the union had committed unfair labor practices within the purview of § 8(b)(1)(A) of the National Labor Relations Act, Case No. 23-CB-1558.

During the hearing on the Union unfair labor practices, the administrative law judge made findings of fact and conclusions of law concerning the activities of Buruato, one of the workers whose reinstatement is under consideration and whose activities precipitated his dismissal. Specifically, as germane to this reinstatement action, the administrative law judge received testimony concerning the activity of Juventino Buruato. Based upon testimony of Jay Benson, the judge found that Buruato threatened Benson with physical violence if Benson persisted in his attempt to cross the picket line. ² Juventino Buruato did not testify. The judge found that this activity was a violation of § 8(b)(1)(A) of the Act.

Then in 1975, based upon charges made by the Union, the Board issued complaints alleging that Mosher had violated § 8(a)(1) and (3) of the Act for failure to reinstate eighteen unfair labor practice strikers. Mosher resisted, alleging that the workers were lawfully dismissed for serious acts of misconduct. The issues thus framed were then heard in an administrative hearing.

The administrative law judge, after receiving evidence, held that Mosher violated the Act by denying reinstatement to Buruato, Smothers, and Wallace. Although the record of the Union unfair labor practice decision, No. 23-CB-1558, was received into evidence, the administrative judge nonetheless permitted relitigation of the question of Buruato's conduct, over the objection of Mosher. Because Mosher relied on the previous finding of fact, Jay Benson did not testify. Based only upon Juventino's testimony denying the commission of the threat, and having no basis to discredit his testimony, the administrative law judge found that Buruato did not engage in threatening conduct and therefore held that Mosher unlawfully denied him reinstatement.

Based on his findings, the administrative law judge also held that Mosher unlawfully denied reinstatement to striker Smothers. Smothers, at the time of the strike, was also a bartender in a neighborhood bar. In the course of the strike, non-striker Suarez repaired to the bar with his family for a libation. In the course of asking for a beer, a verbal exchange, the nature of which Suarez could not recall, occurred. Following closely this exchange Smothers, unprovoked, struck Suarez with a cue stick. Smothers, on the other hand, testified that he refused Suarez an additional beer for reasons of intoxication and when Suarez tried to walk behind the bar, Smothers struck him. Although the administrative law judge credited Smothers and found that the attack was provoked, he also stated that even if the attack was unprovoked, reinstatement is required because the event had not been proven strike-related. He therefore held that Mosher unlawfully denied Smothers' reinstatement.

Two incidents precipitated striker Wallace's dismissal from Mosher. During the course of the strike, Wallace directed an obscene gesture to Mosher's director of industrial relations. The hearing judge determined that this was an insufficient ground for denial of reinstatement. Additionally, Wallace was observed kicking a motorcycle belonging to a non-striker. Pictures taken subsequently showed considerable damage to the motorcycle. The judge credited the observers' testimony and held that the motorcycle had been damaged by Wallace, despite the observation of kicking being only circumstantial evidence of the ensuing destruction. Even though the judge so found, he nonetheless held that Mosher unlawfully denied Wallace reinstatement because the destruction was minimal in comparison to Mosher's serious unfair labor practices.

Mosher then appealed the decision to the Board. The Board affirmed the administrative law judge's decision but modified certain findings with respect to Smothers and Wallace. The Board affirmed the decision with respect to Smothers solely on the credited testimony of Smothers that the fight was provoked. Regarding Wallace, the Board determined that the observation of Wallace kicking the motorcycle did not warrant the conclusion that Wallace perpetrated the additional abuse. The Board, therefore, affirmed the lower decision because kicking a motorcycle is not conduct sufficient to deny reinstatement.

The issues before this court are (1) whether the administrative law judge erred in permitting relitigation of the factual issue of Buruato's conduct and (2) whether the Board erred in holding that Mosher unlawfully denied reinstatement to Buruato, Smothers, and Wallace. On cross-petition, we also necessarily decide whether the Board is entitled to enforcement of its reinstatement order.

Mosher contends that the doctrine of collateral estoppel precludes relitigation of the factual issue of Buruato's alleged misconduct. Collateral estoppel is applicable only if the same parties or their privies are involved in both actions and if it was foreseeable that the facts to be the subject of estoppel would be of importance in future litigation. Hyman v. Regenstein, 258 F.2d 502, 510-11 (5th Cir. 1958). As appellant contends, in both suits the Union was the party against whom the facts would be used as evidence. True, the employee Buruato is "more" interested in the present proceeding than the unfair labor practice proceeding. Employee Buruato, however, still derives his protection in the instant matter from the Union and the Union prosecuted both cases. ³ We therefore hold that the Union was the party to both suits. The Board has provided us with no authority to the contrary except for their opinion that the conditions were not met. With respect to the foreseeable nature of the importance of the facts, we believe the answer is obvious. It is foreseeable that conduct such as Buruato's could be the impetus for the denial of reinstatement after a strike. It is not necessary, as the Board suggests, that the issue of reinstatement must have then been ripe. All that is necessary is that the importance of the facts in subsequent litigation was foreseeable.

The judicial concepts of res judicata are sometimes relaxed in the administrative process. 2, K. Davis, Administrative Law Treatise § 18.03 (1958). They are only relaxed, however, when the policies underlying res judicata are not applicable to the...