Server v. National Labor Relations Bd., AFL-CI
| Decision Date | 06 November 2000 |
| Docket Number | P,Nos. 98-71123,R,98-71446,AFL-CI,s. 98-71123 |
| Citation | 231 F.3d 1156 |
| Parties | (9th Cir. 2000) FLORIAN SEVER; DAVID HIEBERT; MARK W. SIMMONS; ROBERT HENRY KINVILLE; EDWARD REINER; UNITED PAPERWORKERS INTERNATIONAL UNION,etitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and ALASKA PULP CORPORATION, Respondent-Intervenor. ALASKA PULP CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and FLORIAN SEVER; DAVID HIEBERT; MARK W. SIMMONS; ROBERT HENRY KINVILLE; EDWARD REINER; UNITED PAPERWORKERS INTERNATIONAL UNION,espondents-Intervenors |
| Court | U.S. Court of Appeals — Ninth Circuit |
Terrance G. Reed, Alexandria, Virginia, for petitioners Florian Sever, et al.
Ethan P. Schulman, of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, San Francisco, California, for petitioner Alaska Pulp Corporation.
Fred B. Jacob, National Labor Relations Board, Washington, DC, for the respondent.
Petitions for Review of an Order of the National Labor Relations Board. Agency Nos. 19-CA-1924 219-CA-19377 19-CA-19582 19-CA-19322 19-CA-19342 19-CA-19564 19-CA-19610 19-CA-20039 19-CA-19242
Before: Joseph T. Sneed, Andrew J. Kleinfeld, and A. Wallace Tashima, Circuit Judges.
Florian Sever, et al. (the "Employees") and the Alaska Pulp Corporation ("Alaska Pulp") have separately petitioned this court to review an order that the National Labor Relations Board (the "NLRB" or the "Board") issued against Alaska Pulp on August 27, 1998. See Alaska Pulp Corp ., 326 NLRB No. 59, 1998 WL 600786, at *1 ("Alaska Pulp III"). The order describes how Alaska Pulp is to compensate those employees against whom it committed various unfair labor practices following a strike at one of its facilities in 1986-1987.
The Board has filed a cross-application for enforcement of the order. The Employees have intervened to support the Board's cross-application to the extent it relates to Alaska Pulp's petition, and Alaska Pulp has intervened on behalf of the Board against the Employees. Our jurisdiction over these matters is described in Section 10(e) and (f) of the National Labor Relations Act, as amended (the "Act"). See 29 U.S.C. S 160(e), (f).
For the reasons stated herein, we reverse and remand in part, enforce and remand in part, and enforce in part.
This is a complex case, which makes understanding the procedural and factual history imperative.
Alaska Pulp owned a pulp processing mill in Sitka, Alaska. For approximately 27 years, the United Paper workers International Union, Local 962 represented production and maintenance employees at the Sitka plant. The employees participated in an economic strike from July 1986 to March 1987, when they voted in an NLRB-conducted election to decertify the union.
By the time the employees made an unconditional offer to return to work, Alaska Pulp had filled all of its nearly 300 strike-empty positions with permanent replacements and crossovers. See NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 346-47 (1938) (). Consequently, the company placed many of those remaining strikers who had requested reinstatement, nearly 150 individuals, on a preferential recall list. This type of list is commonly known as a "Laidlaw list" after Laidlaw Corp. v. NLRB, 414 F.2d 99 (7th Cir. 1969) ().
Under non-strike circumstances, Alaska Pulp filled job openings within its production departments by promoting the next qualified employee up a departmental job ladder. This is how the Board explained the procedure:
[W]hen a vacancy occurs, the position is filled by the individual immediately below in the line of progression who, during the course of his work, will have previously received training in the next higher job. All the other individuals move up in automatic succession, thereby opening an entry level job for any one at any progression level in one of the other departments who may want to bid into the available entry level job.
Alaska Pulp Corp., 296 NLRB 1260, 1264 (1989) (footnote omitted). Even during the strike, Alaska Pulp filled vacancies by plugging permanent replacements and crossovers into the line-of-progression system.
However, there was no established procedure for bringing those who participated in the 1986-87 strike back to work. Alaska Pulp chose not to reinstate them as soon as their former or substantially equivalent positions became available. Supervisors instead evaluated each unreinstated employee and assigned him or her a numerical ranking within the employee's old department.1 The company then placed each unreinstated employee on the Laidlaw list in ranked order.
As soon as a non-entry-level position opened after the strike, Alaska Pulp filled it by promoting the nonstriking, replacement, or crossover worker who was next in line pursuant to its automatic progression system. Each such promotion, of course, created a vacancy in the promoted worker's old job. If that vacancy was also a non-entry-level position, Alaska Pulp filled it by promoting the next junior nonstriking, replacement, or crossover worker. This successive-promotion procedure continued until it yielded an entry level opening. At that point, Alaska Pulp selected the returning striker from the Laidlaw list who had the highest ranking for the appropriate department and assigned him or her to the empty slot.2 Numerous strikers were recalled to these entry level positions.
Unlike the production departments, the maintenance department did not operate under a seniority-based progression system before the strike. Alaska Pulp instead organized maintenance employees by craft, e.g., electricians, millwrights, pipe fitters, and welders. Certain employees within each craft were appointed "leadmen." During the strike, the company eliminated the separate craft departments and assigned all maintenance workers to two broad categories: general mechanics and lead positions.
During two window periods after the strike in 1987 and 1988, Alaska Pulp offered all vested participants in its pension plan a lump-sum payment of their benefits in exchange for their voluntary resignations. The class of offerees included the former strikers who, as of the two window periods, had not been reinstated. Approximately 91 employees, including members of the maintenance department, chose to receive these lump-sum payments and, ostensibly, to resign. Those employees who resigned were removed from the preferential recall list. See Alaska Pulp III, 1998 WL 600786, at *32. Those who did not resign remained eligible for reinstatement to entry level positions.
Alaska Pulp's response to the 1986-1987 strike generated two entirely separate unfair labor practice proceedings. See Alaska Pulp Corp., 296 NLRB 1260 (1989) (" Alaska Pulp I"); Alaska Pulp Corp., 300 NLRB 232 (1990) ("Alaska Pulp II").
Following the strike, a number of individual employees filed unfair labor practice charges against Alaska Pulp that challenged, inter alia, the company's practice of returning strikers only to entry level positions. The Regional Director for Region 19 of the Board, which is based in Seattle, Washington, then issued a complaint alleging that Alaska Pulp had violated Section 8(a)(1) and (3) of the Act.3 See 29 U.S.C. S 158(a)(1), (3). The Director argued that the entry level approach served no business purpose and ensured that returned strikers would always hold positions inferior to permanent replacements and crossovers.
Alaska Pulp responded that an order forcing it to place strikers in their old positions would undermine its right to reinstate workers based on merit. Put more precisely, Alaska Pulp claimed that, if not all given entry level positions, the strikers would "leapfrog" each other up and down the merit rankings as their former jobs randomly became available. A prohibition against starting returnees in the lowest positions would thereby defeat its ability to reinstate workers solely in order of their relative worth. See Alaska Pulp I , 296 NLRB at 1266.
After a hearing in 1988, an ALJ found that offering only entry level positions to former strikers was an unfair labor practice. This finding was subsequently affirmed by the NLRB, which noted that Alaska Pulp's reinstatement plan improperly denied former strikers access to higher paying jobs, subjected them to potential layoffs, and eliminated their seniority. See Alaska Pulp I, 296 NLRB at 1266. The Board also determined that Alaska Pulp had unlawfully eliminated several strikers from the preferential recall list and had terminated an employee because of his union activity. See id. at 1269-77. However, the Board found the evidence "insufficient" to support a separate charge that Alaska Pulp, for discriminatory reasons, placed five former union officials lower than they should have legitimately appeared on the Laidlaw list. See id. at 1269. It is worth appreciating that after this unsuccessful charge no party has come any closer to proving that Alaska Pulp ordered the recall list in such a way as to punish union leaders.
As a remedy for the unfair labor practices it found, the Board ordered Alaska Pulp to "offer reinstatement to qualified employees on the preferential recall list to any and all positions in each department and each progression level thereof which have been available since the termination of the strike, in a manner consistent with this...
To continue reading
Request your trial
-
United Nurses Associations of California/Union of Health Care Professionals v. Nat'l Labor Relations Bd.
...decision "when substantial evidence supports its findings of fact and when the agency applies the law correctly." Sever v. NLRB , 231 F.3d 1156, 1164 (9th Cir. 2000). The Board's findings of fact are conclusive if supported by substantial evidence on the record as a whole. See 29 U.S.C. § 1......
-
Nat'l Labor Relations Bd. v. Ampersand Publ'g, LLC
...1103 (9th Cir. 1981). We resolve any doubts about the remedy "against the perpetrator of the unfair labor practice." Sever v. NLRB , 231 F.3d 1156, 1165 (9th Cir. 2000).DISCUSSIONThe Union incurred legal fees for consultations with its outside counsel, the Bush Gottlieb law firm ("Bush Gott......
-
Local Joint ex. Bd. v. Nlrb, 00-71138.
...see id. (quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963)); see also Sever v. NLRB, 231 F.3d 1156, 1164 (9th Cir.2000). Here, we conclude that the Board's explication of its rule excluding dues-checkoff from the unilateral change doctrine in the a......
-
United Steel Workers Afl-Cio-Clc v. N.L.R.B.
...Ltd. v. NLRB, 347 F.3d 1145, 1151 (9th Cir.2003), applied the law correctly, id., or imposed a rule arbitrarily, Sever v. NLRB, 231 F.3d 1156, 1164 (9th Cir.2000). Here, only the Board's choice of remedy is at ...
-
The Year in Review 2000: Cases from Alaska Supreme Court, Alaska Court of Appeals, U.s. Court of Appeals for the Ninth Circuit, and U.s. District Court for the District of Alaska
...[742]See id. at 324-25. [743]Id. at 325. [744]See id. at 325-26. [745]See id. at 328. [746]See id. at 329-30. [747]See id. at 332. [748] 231 F.3d 1156 (9th Cir. 2000). [749]See id. at 1167. [750]See id. at 1169-70. [751]See id. at 1159-64. [752]See id. at 1161. [753]See id. at 1165. [754] 2......