Unpublished Disposition, 936 F.2d 578 (9th Cir. 1991)

MEMORANDUM^** 

This case is before the Court upon the application of the National Labor Relations Board for enforcement of its October 5, 1989 order against Liston Brick of Corona, Inc. ("Liston"). The Board's order is affirmed and shall be enforced.

The Board found that Liston Supervisor Craig Hall unlawfully informed employees engaged in protected concerted activity that their actions, including seeking union assistance and engaging in an economic strike, would result in their loss of employment, for he would "lock the gate" before permitting any of the strikers to return to work. Substantial evidence supports the Board's findings that Liston violated section 8(a) (1) of the National Labor Relations Act (NLRA) (29 U.S.C. 158(a) (1)) by threatening employees with plant closure and discharge. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 491 (1951) (substantial evidence supports the finding of a violation).

The company's argument is without merit that Hall's comments did not violate the Act because they were "made in a hostile environment created by the unprotected conduct of the strikers in blocking access to the plant." The ALJ found no credible evidence of blockage of the plant and the Board adopted her decision. Since a clear preponderance of the evidence does not suggest that her decision is incorrect, this finding is affirmed. Carpenters Union Local No. 25 v. NLRB, 769 F.2d 574, 579-580 (9th Cir. 1985).

The record also supports the Board's finding that the company violated Section 8(a) (1) by telling its economics strikers that they "should look for another job because they had been replaced." The ALJ found that as of January 19 when these statements were made, only one replacement employee had been hired. An employer may not falsely inform employees that they have already been replaced (and therefore lost their jobs) when they have not. Eagle Comtronics, 263 NLRB 515, 515-516 (1982). The record supports the conclusion that these statements were false and coercive in light of Section 8(a) (1) of the NLRA.

Substantial evidence supports the Board's conclusion that these violations of the NLRA prolonged the economic strike. The strike was thus converted into an unfair labor practice strike. NLRB v. Champ Corp., 913 F.2d 639 (9th Cir. 1990), modified, No. 89-70160, slip op. at 6351 (9th Cir. May 20, 1991).

2. Offer to Return to Work and Hiring of Replacements

Substantial evidence supports the Board's findings that Liston violated Section 8(a) (3) and (1) of the Act by refusing to accept the strikers' unconditional offer to return to work, discharging them, hiring replacements, and again refusing the strikers' subsequent offers to return to work. The first offer was made through Jesse Garcia on the 19th, the second through an en masse offer on the 20th and the third via mailgram from the union. Once an offer to return is made, the employer has the burden of showing that the offer was conditional. Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1107 (1st Cir. 1981).

Relying on Linden Lumber Div. Sumner & Co. v. NLRB, 419 U.S. 301 (1974), Liston asserts that the first offer was invalid because it had "no obligation" to deal with union representative Garcia, and "had every right to refuse to recognize him or the Union as the representative of the employees regardless of the number of authorization cards received by Garcia." Linden Lumber authorizes an employer to demand a Board election before it recognizes and engages in collective bargaining with a union. However, this court has rejected the argument that a company can refuse to accept the employees' offer because of their chosen spokesperson. NLRB v. Phaostron Instrument & Electronic Co., 344 F.2d 855, 859 (9th Cir. 1965) (once the Board has "determined that the employees desired to return to work and made the desire known" to the employer, the "identities or capacities of the spokesmen are of no particular significance"). Accord NLRB v. I. Posner, 304 F.2d 773, 774 (2d Cir. 1962) (employer's argument that a minority union representative is precluded "from acting as the employee [s'] agent to request reinstatement" is "purely specious"). Garcia identified himself as the spokesperson for the employees for the purpose of offering to return to work. He did not request recognition or bargaining on behalf of the Union, nor did he make the offer conditional upon recognition.

Liston also contends that Garcia's offer was conditioned upon all of the strikers being recalled. There is substantial evidence to support the Board's conclusion that Garcia, a union/employee representative with 10 years of union organizing experience acting under specific instruction from his union leader and from the workers to make an unconditional offer, would not have made a conditional offer. The judge reasonably concluded that Hall was a less credible witness and that the company's claim that Garcia placed a condition on the strikers return was "a post hoc rationalization rather than a convincing legal basis for the company's refusal to reinstate the strikers." Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1107 (1st Cir. 1981).

Unlike the situation in Histacount Corp., 278 NLRB 681 (1986), there is no substantial evidence to demonstrate that the en masse offer was an all or nothing group offer. Moreover, even if that offer were conditional, substantial evidence supports the conclusion that the workers had already made an unconditional offer through Garcia.

Following the conversion of a strike to an unfair labor practice strike, the strikers are entitled to full reinstatement to their former or substantially similar jobs immediately upon their unconditional offer to return to work, if they were not permanently replaced prior to the conversion. NLRB v. International Van Lines, 409 U.S. 48, 50-51 (1972); NLRB v. Top Mfg. Co., Inc., 594 F.2d 223, 225 (9th Cir. 1979). The company bears the burden of proving that permanent replacements occupied the strikers' positions prior to the conversion of the strike to an unfair labor practice strike. Consolidated Dress Carriers, Inc., 259 NLRB 627, 636 (1981), enforced in part and remanded in part, 693 F.2d 277 (2d Cir. 1982).

The record reveals that at most one replacement, Roy Wayne Turner, had been hired by January 19 when the strike became one over unfair labor practices. The company hired 39 additional replacement employees between 2:00 p.m. on the 19th and February 1. The company concedes that the situation on January 19 was "hectic and confusing" and that "there simply are no sure answers" as to exactly when particular replacements were hired." Furthermore, the company failed to maintain any records indicating precisely when the replacements were hired. The lack of records and the evidence of coaching the replacements to falsify their hiring date indicates that the Board was correct in concluding that the employer has not satisfied its burden of proof that replacements were hired before the conversion of a strike to an unfair labor practice strike or that they were hired as permanent employees.

Liston also violated the strikers' rights by transferring the replacements from job to job. Replacements may not be transferred above strikers who have unconditionally offered to return to work. Arlington Hotel Co. v. NLRB, 785 F.2d 249 (8th Cir. 1986), cert. denied, 479 U.S. 914 (1986).

Liston argues that it satisfied its duties to the replaced strikers by establishing a preferential hiring list of striking employees. Economic strikers take the positions of permanent replacements as they leave through attrition. NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333 (1938). However, these are unfair labor practice strikers, entitled to their jobs even if that means firing replacements. Preferential hiring does not satisfy the employer's duties in this case.

Substantial evidence supports the Board's findings that Liston violated Section 8(a) (3) and (1) of the Act by discriminatorily suspending and discharging employees Jose Cervantes and Luis Madrigal for their alleged conduct during the strike. "Striking employees who engage in serious picket line misconduct forfeit the protection of the Act and may be discharged for such conduct." General Teamsters Local No. 162 v. NLRB, 782 F.2d 839, 841 (9th Cir. 1986). Liston alleges that on February 9, Cervantes and Madrigal blocked the vehicle of nonstriker Jose Manzo from entering the plant and that on the following morning they engaged Manzo in a high speed vehicle chase.

Although Liston presented sufficient evidence to demonstrate an honest belief in strike misconduct, the ALJ concluded that the Counsel General proved they had not engaged in misconduct. NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964). The ALJ found that Manzo was not a credible witness, failing to fully explicate the facts upon questioning and lacking candor. The ALJ found Cervantes and Madrigal credible witnesses who testified that they had picket duty then went to a nearby bar to play pool at the time of the alleged chase.

Although Jack Hall allegedly telephoned the bar manager to confirm their whereabouts at the time of the alleged incident, the ALJ found that the manager of the bar was somewhat confused in his testimony and failed to confirm Hall's story. There is sufficient evidence to sustain the ALJ's decision. See NLRB v. Champ Corp., 913 F.2d 639 (9th Cir. 1990), modified, No. 89-70160, slip op. at 6363 (9th Cir. May 20, 1991) (substantial evidence supports the Board's decision that none of the conduct charged occurred).

The decision and order of the National Labor Relations Board is affirmed and shall be enforced.

ENFORCEMENT GRANTED.