USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

____________________

No. 96-2288

McGAW OF PUERTO RICO, INC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

____________________

ON PETITION FOR REVIEW AND CROSS-APPLICATION

FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD

____________________

Before

Selya, Circuit Judge,

_____________

Aldrich and Coffin, Senior Circuit Judges.

_____________________

____________________

Francisco Chevere with whom Ariadna Alvarez and McConnell Val

_________________
________________
______________
were on brief for petitioner.
Fred L. Cornnell, Supervisory Attorney, with whom
_________________
Attorney,

Frederick L. Feinstein,
________________________

Associate

General Counsel,

Aileen

General
A.

Counsel,

Armstrong,

David A. Se
___________

Linda Sh
_________

Deputy

Associ

_____________________
General Counsel, and National Labor Relations Board were on brief
_______________________________
respondent.

____________________

December 10, 1997

____________________

ALDRICH, Senior Circuit Judge.

The National Labor

____________________

Relations Board ("the Board") asks us to enforce its decision

and order of

Rico,

October 31, 1996, finding that

Inc. ("McGaw"

or "the

unfair labor practices

(3) of the

responds

and/or

to

in violation of Sections

substantial

findings that

employees

engaged in

National Labor Relations Act ("the

that

Board's

Company")

McGaw of Puerto

because

it

evidence does

8(a)(1) and

Act").

others

engagement in

from

such

McGaw

support

unlawfully discriminated

of their

discourage

not

various

the

against

union activities

engagement.

We

disagree, and grant the request for enforcement.

I.

The record

following

facts,

Factual Background

supports the

arranged

Board's findings1 of

chronologically.

McGaw

the

has

manufactured

medical devices and related products at a plant

in Sabana Grande,

Puerto Rico, since 1974.

employees working three shifts at

the plant, McGaw is one of

the largest employers in the region.

Industriales

With about 1100

The Congreso de Uniones

de Puerto Rico ("the Union") has been trying to

organize McGaw's Sabana

Grande workers since 1992.

Several

____________________

1.

The

Board

conclusions

completely
of

law,

administrative law judge

June 1995.
conduct

adopted
and

findings

recommended

("the ALJ") who

The Board need not make

a separate

the

analysis of

the

order

of

fact,
of

heard the case

the
in

independent findings or
factors prompting

the

order if it specifically adopts the findings and reasoning of

the ALJ.

See, e.g., NLRB v.

___ ____ ____

Horizon Air Servs., Inc., 761

_________________________

F.2d 22, 24 n.1 (1st Cir. 1985).

-2-

McGaw

employees,

including alleged

Silva, Vigdalia Rodriguez,

Production

Clerks ("LPCs")

and Lourdes Irizarry --

at the

leaders in the Union's efforts.

they

spoke

distributed

to

discriminatees

Company

observers, delivered

about

the

all Line

active

Individually or as a group,

union authorization

employees

-- were

Charlie

Union,

cards

acted

at the

plant,

as

election

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

in 1992,

eliminating, first, several

later, four

LPC positions.

laid off, but,

Company

its engineering department

mechanic positions and

The affected

employees were not

instead, reassigned to other

advised them by memo that

positions.

The

"the elimination of these

positions was

carried out taking into

consideration several

factors

as general

abilities, seniority,

such

skills

and

attitude and others concerning general performance."

The Union, by a narrow margin, won an election held

in

February 1993.

parties stipulated to

After

48

ballots were

challenged, the

a second election, to

be conducted on

November

undergoing

by

the

Board.

significant

Marshall ("Marshall"),

Grande

in

"disorganized

July

1993,

mess" and

In

the

operational

meantime,

reorganization.

appointed General

found

set

the

about a

-3-

McGaw

Manager at

existing

Ira

Sabana

operations

multi-million

was

dollar

overhaul

of the plant's

reorganization

replacement

of

of

production system.

the Company's

its

"workcell"

operations was

production

belt system.

employee

completely assembled a given product.

of

although

system,

largely clerical tasks.

production

LPCs often worked the

employees

during

the

each

LPCs liaised

system, each employee performed

partial assembly step.

alongside

workcell

with

production employees, keeping

production by performing

the new conveyor

the

the phased

method

conveyor

between supervisors and

Under

Central to the

track

Under

a discrete

conveyor belt

transition,

installation of the belts rendered obsolete much of

their clerical responsibilities.

In

employees

October 1993,

as part

of

its

the Company

laid

restructuring.

off some

140

Preceding

the

layoff,

Human

employees

by

Resources

memo that

Manager Alex

Solla

"[s]eniority

(employment

classification and general performance are the

in order to

determine affected employees," and

employees

affected

organization

will

and

having

be

offered

more

the

bumping/replace [sic] other employees

Assembler

I positions."

In the

informed

the

date) by

criteria used

that "hourly

seniority

in

the

opportunity

of

with less seniority in

same

month, the

Company

closed its sterilization department and transferred about ten

affected employees to production.

-4-

In the

conveyor

following month, McGaw installed

belt.

Also,

election, in which

the

Board

conducted

the Union failed to get

its first

its

second

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

"NO"

sticker, to

which

she

herself a key person among

replied

that

she

considered

employees and that wearing such a

sticker might create friction within the Company.

Restructuring

Company

laying off

continued

close

to

in

twenty

February

1994,

employees.

Also

the

in

February, the Company changed its LPC shift assignment policy

from classification

Company notified

seniority to

plantwide seniority.

affected employees

of its

The

"new change

of

policy" by letter: "[p]ursuant to the seniority policy of our

company, we have

restructured the assignment of

of the line production

date

clerk position, in accordance

when the incumbents

[the Company]

Vigdalia

work shifts

in such position

(plant seniority)."

Rodriguez, forced

to take

LPCs

to the

began working at

Nilsa Nazario

less desirable

and

shifts,

complained to management

notice.

At

Rodriguez

asked about

about the change and

February

28

meeting

the change,

and

with

lack of prior

supervisor,

received the

vague

explanation that "Company policy had changed a while back."

-5-

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

conversation

Resources Manager

employees

"were

Sabana Grande

won.

Solla

told LPC

mistaken

had been

on or

about

March

Silva that

with the

a large town,

union

10, Human

he and

other

idea

because if

the Union

would have

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

the

about the Union."

Union "came

back," McGaw's

Union, but rather would

without

paying

He later told her

owners would not

close the plant without

workers

for

their

Gonzalez further

added that "the

for

would not

that reason

companies because

fight the

warning and

week

of

people that were

be able

they would

final

to get work

know that

that if

work.

laid off

from other

the reason

for the

layoff was because of unions."

It

during

became

the first half

clear

to

Company management

of 1994 that

-6-

sometime

personnel changes would

accompany the

production transition.

Solla, Marshall indicated his views

unskilled

people" under

establish a "new

the need

Manager Juan

the conveyor

"many people that

He instructed

Luis

Santa to

May 18

memo to

as to the need for "less

system,

more technical and flat

to replace

technology."

In a

the need

to

organization," and

cannot adapt

Solla to

meet with

"develop

a tentative

to the

Operations

plan

to

organize and upgrade our human technical expertise . . . [and

that] this should be done by 610/94 [sic]."

Around

third

election.

LPCs

for

the same time,

Union

Silva and Irizarry

the Union campaigned

president Jose Figueroa,

and mechanic Juan

a May 29 meeting of prounion

beach.

meeting,

for a

along with

Vargas, arranged

employees, held at a local

McGaw supervisor stood within visual

range of the

and an employee who was in the "Vote No" group also

was seen nearby.

Management memos and documents dated shortly

the

to

after

May 29 Union meeting confirm the Company's determination

eliminate

LPC positions.

In

June

8 memo

supervisor, Gary Sielski, Marshall indicated the

elimination

of

10

LPC

positions,

stating

to

his

anticipated

that

"[t]he

objective

will

be

to

discharge

educational training, and seniority.

[because] [w]e need

[conveyor] system.

people

by

performance,

We are doing this . . .

people with the discipline to manage the

They must

also have

the education

to

-7-

learn

to use the system and perform additional reporting and

record keeping."

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

seniority,"

In a

on

performance,

with the direction

academic

background,

that the reduction

and

occur no

later than the end of June.

On June 13, Marshall submitted a

"Monthly

to Sielski,

Activity

Report"

Company's activities, plans, and

setting

forth

the

priorities, and identifying

the elimination of the "union threat" as one of the Company's

priorities.

"hire

39

The Report also

people, 29

for

stated the Company's

increased production

and

plans to

10 for

backlogged rework."

On or

Marshall,

Solla,

about June 22, Company

and

Employee

officials, including

Relations

Manager

Miriam

Figueroa,

met with employees.

Marshall stated

in the plant

with them,

that

According to

LPC Rodriguez,

that "he did not want third parties involved

with them

or dialogue

Marshall stated

because [the

employees] could

with them."

She further

that "neither

the

talk

testified

employees nor

the

supervisors

needed to

talk about the

Union, that

the only

people that

could talk

about Unions

were himself

and Alex

that Marshall stated

that the

Solla."

LPC Silva testified

Company had a lot of money to invest in employee salaries and

benefits, and that

he "didn't want third parties

-8-

to come in

order to

obtain those

recalled

that

Marshall

benefits for the

said

he

employees talking in the hallways,

"did

employees."

not

want

Silva

to

hear

whether it be pro or con,

for or against the Union, and that if there needed to

be any

Union talk in McGaw it would be done between himself and Alex

Solla in

told

his office."

the employees that

company, that

Silva

also testified that

"things were

sales were up,

looking good"

and that "at the

Marshall

at the

moment there

were no plans to fire or dismiss anybody."

Marshall claimed

that, because emotions

Union were running high, he

meeting that "no

stressed to the employees at the

one was to be threatening

supporting or not supporting the

Union."

was Solla rather than he who told the

and Solla were authorized to

statement

referred

authorized to

Union.

employees

that

to those

he

employees, and that

with Solla or him.

testified

would

anyone . . . for

He claimed that it

employees that only he

discuss the Union, and that the

management officials

speak on behalf

Figueroa

about the

of the Company

that

not

Marshall

allow

any

anyone who felt threatened

who were

regarding the

informed

threats

the

among

should speak

Figueroa's testimony was consistent

with

Marshall's insofar as it was Solla who had said that the only

management representatives allowed

to "make

any updates

on

the Union" were Marshall and Solla.

-9-

Barely

Company

more than

laid off nine LPCs.

a week

The

later,

on June

30, the

nine were laid off without

warning, and strictly according to plantwide seniority rather

than the manifold

memos.

criteria listed in the

Marshall testified that

responsible for the

Marshall and Santa

Santa, rather than

he, was

change, and claimed that Santa and Solla

had met with the Company's legal counsel, who advised them to

"just

stick with

Company

Law 80"2

officials

conducted

affected employees, who

to restructuring.

other positions,

They

and go

by "length

layoff

interviews

were told that the layoffs

Several asked about being

as had

of service."

been the

with

the

were due

transferred to

Company's past

practice.

were told, variously, that "Company policy had changed,

and that they would no longer be doing it that way," "Company

policy

is that if a

job classification is eliminated, there

is no chance of relocation," "Company policy was no longer to

relocate people in lower

changed," and "we

positions, and that the policy

had

don't have any openings at

that time, and

if we do that, we would be violating Law 80."

Following the

June

layoff,

the

Company

hired

about

50

"temporary"

production employees, and would have refused to rehire any of

the laid-off employees as temporary employees had they asked.

____________________

2.

"Law
185a-m.

80"
Law

is Puerto

Rico

80 addresses

reducing its workforce.

Public
an

Law

80, 29

L.P.R.A.

employer's obligations

in

The Company's claims with respect to

Law 80 are addressed below.

-10-

The Company installed two additional conveyor belts

in July 1994, and two more in April 1995.

II.

Procedural Background

Pursuant to charges

issued a complaint

filed by the Union,

and notice of hearing on

the Board

March 24, 1995.

The complaint alleged that McGaw violated Section 8(a)(1)3 of

the

National

Labor

Relations Act

158(a)(1), by

soliciting employees

other employees'

union activities,

("the

Act"),

to spy

29 U.S.C.

on and

expressing to

report

employees

the

futility of engaging in union activities by telling them

it was easy to instill fear

against the Union,

Union's

in them so that they would

interrogating an employee

activities

at

the

employees with

plant

supported

Union, threatening

the

regarding future

the Union, and

and

loss of

to

concerning the

plant,

threatening

wages

if

they

"blackball" employees

employment opportunities if

they supported

prohibiting employees from talking

Union at the plant.

violated

closure

Company's

vote

about the

The complaint further alleged that McGaw

Section 8(a)(3)4 of the Act, 29 U.S.C.

158(a)(3),

____________________

3.

Section

8(a)(1) provides that

labor practice for

or

coerce

"[i]t shall be

an employer to interfere

employees

in the

exercise

of"

an unfair

with, restrain,
their statutory

rights

to

self-organize,

form,

join,

and

assist

labor

organizations, and engage in collective bargaining.

4.

Section

shall

be

8(a)(3) provides,
an

unfair

labor

in relevant part,
practice

discrimination

in regard to hire

any

condition

term

or

of

for

an

that "[i]t
employer

by

or tenure of employment or

employment

to

encourage

or

discourage membership in any labor organization . . . ."

-11-

by

changing

its

plantwide seniority

seniority policy

and by laying

from

classification

off nine LPCs on

to

June 30

because

they

discourage

joined

employees

and

from

assisted

engaging

the

Union,

in

Union

and/or

activities.

Named as discriminatees in the complaint were LPCs

Pacheco,

Lourdes

Francisco

Irizarry,

Jusino,

Maria

Raquel

Belen,

Jose Luis

Gonzalez, Scipio

Charlie

to

Silva,

Vega,

Vigdalia

Rodriguez, and Nilsa Nazario.5

The Company denied

hearing,

the allegations.

the administrative law

each of the

Following

these

recommended order.

panel of the

findings

was

a full

judge ("the ALJ") sustained

Union's allegations, finding as a

that McGaw had violated Sections

After

matter of law

8(a)(1) and (3) of the Act.

detailed

remedy

and

McGaw timely excepted, and a three member

Board affirmed the ALJ's rulings, findings, and

conclusions, and adopted his order

with slight modification.

The Board ordered McGaw to cease and desist, and to reinstate

and

make

whole

those

unlawfully

jurisdiction over McGaw's

off.

appeal pursuant to

and (f) of the Act, 29 U.S.C.

III.

A.

laid

We

have

Sections 10(e)

160(e) and (f).

Discussion

Standard of Review

____________________

5.

At

the hearing, the Company and

private settlement agreement,

Irizarry
complaint

waived her right

Irizarry entered into a

approved by

the ALJ,

to reinstatement.

allegations were settled

at the hearing.

-12-

whereby

Various other

or otherwise disposed of

"We

will

enforce

correctly applied the law and

record

supports

the

Board

order

if

the

Board

if substantial evidence on the

Board's

factual

findings."

Union
_____

Builders, Inc. v. NLRB, 68 F.3d 520, 522 (1st Cir. 1995); see
______________
____
___

also,
____

e.g.,
____

1217,

1221

Sullivan Bros. Printers, Inc. v.

_____________________________

(1st

interpretation

defensible,"

Cir.

of

1996).

applicable

Kelley v.
______

NLRB, 79
____

As

long

statutes

as

NLRB, 99 F.3d
____

the

is

F.3d 1238, 1244

Board's

"reasonably

(1st Cir.

1996), we will uphold the Board's conclusions of law "even if

we

would

have

reached

Builders, 68 F.3d at 522;

________

93

F.3d

1012,

different

conclusion."

Union
_____

see also Providence Hosp. v. NLRB,

___ ____ ________________
____

1016 (1st

Cir.

1996)

("[A]ppellate courts

ordinarily should defer to the Board's interpretations of the

statutes it

must enforce, such

interpretations flow rationally

Penntech Papers, Inc. v. NLRB,

_____________________
____

("The court may

Board

views,

when

the

choice

NLRA, whenever

from the statutory

choice is

between

two

text.");

matter

been

that of the

fairly conflicting

court would justifiably

had the

such

706 F.2d 18, 22-23 (1st Cir.)

not substitute its judgment for

even though the

different

as the

have made a

before it

de novo
________

. . . ." (internal

quotations omitted)),

cert. denied,
____________

464

are "conclusive"

if

U.S. 892 (1983).

The Board's findings

"supported

as a whole."

of fact

by substantial evidence

29

U.S.C.

160(e).

-13-

on the record considered

"'Substantial evidence is

more than a mere scintilla.

as a

reasonable mind might

conclusion.'"

It means such relevant evidence

accept as adequate to

Penntech Papers, 706

________________

Universal Camera Corp. v. NLRB,

_______________________
____

In determining whether

"must

take

detracts

into

account

it."

at

340 U.S. 474,

Id.
___

whatever

in

the

fact finding as

22 (quoting

477 (1951)).

such substantial evidence

from the Board's

that supports

F.2d

support a

exists, we

record

fairly

well as evidence

(internal quotations omitted).

will "sustain inferences that the Board

We

draws from the facts

and its application of statutory standards to those facts and

inferences

as

long

as

they

Laverdiere's Enters., 933 F.2d

_____________________

are

reasonable."

1045, 1050 (1st

NLRB
____

v.

Cir. 1991).

Finally, "[t]he ALJ's credibility determinations are entitled

to

great

weight

testify."

302,

since

he

saw

and

heard

Holyoke Visiting Nurses Ass'n

______________________________

308 (1st

Cir.

1993);

see also
___ ____

the

witnesses

v. NLRB, 11
____

NLRB
____

F.3d

v. Horizon Air
____________

Servs., Inc., 761 F.2d 22, 25 (1st Cir. 1985).

____________

B.

Section 8(a)(1) Violations

Whether

here

by oversight

or admission, McGaw

has not

contested the Board's findings that it violated Section

8(a)(1) by

union

soliciting employees

activity

appear

futile,

threatening plant closure

to spy

and report,

interrogating

and loss of wages,

making

employees,

threatening to

"blackball" union supporters, and

prohibiting employees from

talking

failing to

about

the

union.

By

contest

these

-14-

findings, McGaw

erroneous.

has waived

its right to

object to

See Horizon Air Servs., 761 F.2d at 26.

___ __________________

the unlawful practices underlying

them as

Further,

these uncontested findings

"do not disappear by not being mentioned in [McGaw's] brief,"

but rather remain to inform our consideration of

the Board's

other findings.

NLRB v.
____

Clark Manor Nursing Home Corp., 671

______________________________

F.2d 657, 660 (1st Cir. 1982).

-15-

C.

Section 8(a)(3) Violations

It is an unfair labor

discrimination in

any

term

or

discourage

primary

regard to hire or tenure

condition

of

employment

is a

Whether

8(a)(3)

motivation.

an

employer's

See generally
___ _________

discourage union activity,

there is

to

encourage

action

violation turns on

Management Corp., 462 U.S. 393,

________________

is to

of employment or

membership in any labor organization."

158(a)(3).

employees

practice "for an employer by

no anti-union motive,

NLRB v.
____

29 U.S.C.

adverse

to

the employer's

Transportation
______________

397-403 (1983).

If the goal

there is a violation.

or if the same

or

If

action would

have

been

taken based

motive, there is

on

some other,

no violation.

non-discriminatory,

Motive may

both direct and circumstantial evidence.

be inferred from

See NLRB v. Pilgrim

___ ____
_______

Foods, Inc., 591 F.2d 110, 118 (1st Cir. 1978).

___________

The

General Counsel makes a prima facie showing of

unlawful

discrimination

by

establishing:

(i)

protected

activity

by employees; (ii) the employer's knowledge of this

activity; (iii) the employer's animus toward unions; and (iv)

a causal connection

against employees.

between the animus and

the action taken

See Carry Cos. of Illinois, Inc. v. NLRB,

___ ____________________________
____

30 F.3d 922, 927 (7th Cir. 1994); see also Pilgrim Foods, 591
___ ____ _____________

F.2d at 118.

In other words, the General Counsel must

prove

at the outset

substantial

that "the employee's

protected conduct was

or motivating factor for the discharge" or other

-16-

adverse

burden

action.

then

Horizon Air Servs., 761

___________________

shifts

preponderance of

to

the

the evidence,

employer

that it

F.2d at 27.

to

prove,

had another

The

by

motive

that was both

legitimate (non-pretextual and based

on other

than

protected conduct) and primary (would have produced the

same

outcome regardless

of the

protected

Transportation Management, 462

__________________________

U.S.

at

activity).

See
___

400-05; see
___

also,
____

each element of the

prima

e.g., Horizon Air Servs., 761 F.2d at 27.

____ __________________

Doggedly, McGaw attacks

facie case.

It first contends that not all of those laid off

engaged in protected activities, and that laying off the nine

LPCs did not eliminate all of the Union's active

some

of whom

required.

Rodriguez

supporters,

were not

Some of

--

the

McGaw demands

those laid off

clearly

and

LPCs.

were among

Company

supporters,

more

-- Irizarry,

the

need not

Union's

lay

off

than is

Silva, and

most ardent

all union

supporters

at once

to

violate

8(a)(3).

Instrument Corp. of Am., 714 F.2d 324, 330

________________________

Ordering layoffs

"for

the

purpose

of

See
___

NLRB
____

v.

(4th Cir. 1983).

discouraging

union

activity or in retaliation against . . . employees because of

the union

some

union.

activities of

of those

laid off

some" violates

8(a)(3), even

if

were

even against

the

neutral or

Birch Run Welding & Fabricating, Inc. v.

______________________________________

F.2d 1175,

1180 (6th

Cir. 1985);

NLRB, 761
____

see also Merchants Truck

___ ____ ________________

Line, Inc. v. NLRB, 577 F.2d 1011, 1016 (5th Cir. 1978).
__________
____

-17-

McGaw

activities of

anti-union

then claims

it did

those laid off,

sentiment.

Rodriguez, Irizarry,

This

and Silva

not

know of

and in any case,

strains

the union

harbored no

credibility.

each were

overt and

Union supporters, both within and without the plant.

LPCs

active

Before

the ALJ, Company officials admitted to knowing as much and to

observing union activity at the plant.

to

explain

credited

allegations

that

Further, McGaw failed

Company

officials

solicited an employee to

spy and report on

activities

a month

and,

barely

observed

the Union

Irizarry

were present.

animus

falls

meeting

flat

before

at the

Irizarry's union

the

beach

June layoffs,

where Silva

Also, McGaw's denial

in light

of

and

of anti-union

Marshall's

comments about

dissolving the "union threat" and keeping "third parties" out

of the plant,

to

intimidate

various

the Company's attempts to spy

union

supporters through

on Irizarry and

interrogation

and

threats, the Company's interrogation of LPC Belen as

to her Union sentiments, as well as the Company's prohibition

of

discussion of

evidence

the Union

among

employees.

Substantial

supports the Board's findings of both knowledge and

anti-union animus.

Closing its assault on

the General Counsel's prima

facie case, McGaw argues that, because both Union and Company

supporters were

laid

off, a

sufficient

between any anti-union animus and

causal

connection

its actions is absent.

As

-18-

noted,

adverse

action

may

be

unlawfully

discriminatory

whether or not all union adherents suffer at once.

See Birch

___ _____

Run Welding & Fabricating, 716 F.2d at 1180; Merchants Truck

_________________________
________________

Line, 577 F.2d at 1016.

____

In any case, McGaw misses

it

from

is

the

departure

past

combination with the LPC layoffs,

violation.

It

is

undisputed

Company

the mark;

practices,

in

that the Board found to be

that,

had

McGaw

used

classification seniority to effectuate the June layoffs, LPCs

Irizarry, Rodriguez, and Belen would not

have been laid off.

Also, McGaw inexplicably

departed from its past

practice of

relocating, rather than

laying off, workers when

a position

was phased out.

expressed

This occurred at

the need

for "less

a time when its

unskilled

managers

people" under

conveyor system and more people with the "education

the

to learn

to use the system and perform additional reporting and record

keeping," and

at a

time when

it planned

people for production and rework

"temporary"

These

production

facts, together

and Rodriguez's

employees

about 40

(and in fact hired about 50

following

with McGaw's knowledge

union activities,

union sentiments,

to hire

the

of Irizarry's

its suspicion of

and its anti-union animosity,

layoff).

Belen's

support the

Board's inference that McGaw changed its LPC seniority policy

in February 1994

if not to discriminate

union supporters then

termination of

immediately against

to lay the groundwork for the eventual

key union

leaders in the

-19-

LPC position.

We

reject McGaw's

position that

and instead accept

action,

no causal

the Board's conclusion that

calculated to affect

discriminated

connection existed,

against Union

key Union

activists

such adverse

leaders, unlawfully

and/or was

taken to

discourage others from supporting the Union.

Prepared

argument,

for

McGaw responds

rejection

that

of

its

first

legitimate business

round

of

reasons

would have led it to lay off the nine LPCs, regardless of any

union

animosity.

production transition

of the LPCs'

The Board

accepted

that

the Company's

inevitably would render

obsolete many

traditional functions, and we

But again, McGaw misses the point.

McGaw

do not disagree.

The issue is not

whether

had a primary nondiscriminatory reason for the layoffs

generally, but rather whether it

had such a reason to depart

from its past practices, departures which appear to have been

calculated to adversely impact employees engaged in protected

activities.

1181

See Birch Run Welding & Fabricating, 761 F.2d at

___ _______________________________

(noting

practice"

that

"an

employer's

deviation

from

past

is persuasive evidence of an unlawful motive); cf.

___

Transportation
Management
Corp.,
___________________________________

(highlighting employer's departure from

462

U.S.

at

404

its usual practice);

Hunter Douglas, Inc.

_____________________

v. NLRB,
____

804 F.2d

808, 814

1986) (same), cert. denied, 481 U.S. 1069

_____________

Truck Line,
___________

577

F.2d

persistently

but

rather

at

1016 (same).

lamely

-20-

maintains

(3d Cir.

(1987); Merchants
_________

To

this,

that

it

McGaw

never

changed policies at all.

We must

reject this; not only

do

the Company's past practices and statements, recounted above,

indicate the opposite, but the ALJ found McGaw's sole witness

on this issue -- Miriam Figueroa -- not to be credible.

Board did

not disturb this

credibility finding; nor

The

do we.

Thus, McGaw's explanation for the layoffs, although plausibly

non-discriminatory, does not explain

why the Company changed

its seniority and relocation policies.

Finally, McGaw points to Puerto Rico Public Law 80,

29

L.P.R.A.

185a-m

("Law 80"),

as

requiring it

layoffs according to plantwide seniority.

of the

evidence, McGaw

plantwide

seniority,

maintains

in

Despite the weight

that it

accordance

to make

with

has always

Law

80,

used

in

effectuating layoffs.

that

Its

unstated argument, apparently, is

even if this is found not true, its switch to plantwide

seniority from classification seniority was nondiscriminatory

because Law 80 required the change.

The Board did not agree;

nor do we.

Law

80

entitles

employees

who

are

discharged

"without good cause" to severance compensation, calculated in

part

by years

of service.

See
___

185a.

"Good

cause," in

turn, includes the full, temporary, or partial closing of the

employer's

reorganization

operations,

changes,

employment made necessary

185b(d),

185b(e),

technological

or

reductions

in

and

by a reduction in

-21-

the anticipated

or

time

prevailing volume of production, sales, or profits at the

of the

discharge,

185b(f).

In

any of

these three

circumstances, the employer has a

duty . . .
greater

to retain those
seniority

on

the

preference, provided there

vacant

or filled

seniority

in

the

by

employees of
job

are positions

employees of

less

within

their

occupational classification which

may be

held by them . . .

job

with

except . . . in those

cases

in

which

there

conclusive

difference

efficiency

or

compared,

in

is

clear and

in favor

capacity of
which

case

of

the
the

the

workers
capacity

shall prevail . . . .

185c.

command

McGaw

to

clings

use

to this

plantwide,

provision

rather

as

than

statutory

classification,

seniority.

The meaning of

"job"

could

refer

"plantwide"), or to

Guidelines

May 30, 1976

185c is less than clear.

to

employment

generally

employment in a specific

The word

(i.e.,

position.

The

for the Interpretation and Application of Law 80,

("Guidelines"), promulgated by the

Puerto Rico

Department of Labor and Human Resources, indicate the former,

although they are nevertheless ambiguous as to the meaning of

185c.

On the one hand, the Guidelines say:

If there

is a need

within

any

classifications,
obligated

to dismiss employees

or

some
the

to retain

said classifications
the

employer

will

be

with preference

in

the employees

greatest seniority

and to

that effect

occupational

with

in the company,
_______________

all the

time worked

continuously and uninterruptedly

for the

company will be considered, regardless of

-22-

the

occupational

classifications

where

they were performed.

Guidelines, 9

(emphasis

Guidelines say:

. . .

he does

"When the

added).

On

the other

hand,

the

employer needs to lay off workers

not necessarily

have to

do so

following an

order of seniority since the law does not require this."

Id.
___

at 10.6

Whatever the meaning of

scheme of Law 80 and

185c, its role within the

Law 80's relation to federal labor

law

suggest that Law 80 does not have the effect that McGaw seeks

to give it.

not

require

First, as we

an

have previously noted, Law 80 does

employer to

use

plantwide

seniority, but

merely provides employees with an action for severance pay if

discharged

"without good cause."

See Rodriguez

v. Eastern

___ _________

Air Lines, Inc.,

________________

816 F.2d 24,

whether Law 80's

28 (1st

Cir. 1987).

seniority provision, whatever

has been complied

_______

with is relevant only to

Thus,

its meaning,

the existence of

____________________

6.

We also note, in passing, the Guidelines' advisory that:

if

the

skills

machinery,
adapt

to

to

required
work

to

operate

new designs

new procedures

can

or

to

be easily

acquired through a simple and inexpensive

training

the

obligation to
cannot

employer

is

provide said

fire the

under penalty of

employees

under

the

training and
who need

it

being responsible under

Law No. 80.

Id. at 18.
___

Insufficient facts have been adduced to determine

whether this provision applies in this case, although it does

suggest that
affected LPCs.

McGaw may

have had some

duty to

re-train the

-23-

"good cause."

Law 80 does not, as

to use plantwide

it does

not,

McGaw argues, require it

seniority, but at most merely

it may

have to

provide severance

Rivera v. Security Nat'l Life Ins. Co., 106

______
_____________________________

(1977).

"[B]ut an employer willing

says that if

pay.

Cf.
___

D.P.R. 517, 527

to pay the price is free

to discharge

F.2d

whomever he

at 28.

designed

to

practices,

short, "[a]lthough

assist

those injured

there is every

interference with

including its

by

816

80 obviously

is

arbitrary

discharge

indication from its

language and

the legislature intended to

avoid direct

the employer's

seniority and

business operation,"

relocation

policies.

criteria other than plantwide

senior affected employees to

perverse indeed to

for the

Law

Rodriguez,
_________

id.,
___

McGaw's

and statements indicate that, before the June 1994

layoff, it used

allowed

pleases."

In

other sources that

practices

or she

allow it now to invoke

protection of

unlawful labor

relocate.

workers as

practices.

Second,

seniority and

It would be

a statute enacted

justification for

the Guidelines

its

indicate

that "if

[a] dismissal

of an

employee turns

illegal work practice, the applicable

Labor Relations

the case may

were

unlawful

authority.

Guidelines, 11.

under

the latter,

be an

law is the Puerto Rico

Act or the National Labor

be."

out to

Relations Act, as

Because McGaw's actions

that

is

the controlling

Finally, McGaw does not direct us to any case law

interpreting Law 80 in a manner helpful to its argument.

-24-

IV.

We

supports

The

conclude

Conclusion

that,

because

substantial

evidence

the Board's findings, its order should be enforced.

Board's findings

summarily

of

various

8(a)(1)

violations

are

affirmed, given McGaw's failure to challenge them.

Further, we

accept the

Board's conclusion that

substantial

evidence indicates that the challenged layoffs were motivated

primarily

by

justifications

insufficient.

reason for the

anti-union

for

the

Although

animus

particular

McGaw may

and

that

layoffs

have

had

LPC layoffs generally, it had

at

McGaw's

issue

are

a legitimate

no such reason

for its changes in policy, which, together with the

layoffs,

adversely affected

to discourage

light

others from supporting

of McGaw's

accepting

contention

that

proceedings.7

the

the Union.

animus,

layoffs

we

the LPC

of

no

constituted

position no

the issue

Viewed in

have

labor practices under the Act.

we leave

308; NLRB
____

anti-union

that

discriminatory

plant,

leading union activists and/or were taken

trouble

unlawfully

Given McGaw's

longer exists

reinstatement to

at its

compliance

Cf. Holyoke Visiting Nurses Ass'n, 11 F.3d at

___ ______________________________

v. Globe Mfg. Co., 580

_______________

F.2d 18, 21-22

(1st Cir.

1978).

____________________

7.
full

The

Board ordered

McGaw to "offer

. . . reinstatement to

[the discriminatees]

their former jobs

or, if those

jobs

no

positions,

longer

exists [sic],

to

substantially equivalent

without prejudice to their seniority or any other

rights or privileges previously enjoyed."

-25-

The order of the Board shall be enforced.

_________________________________________

-26-