Medite of New Mexico, Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1994

314 N.L.R.B. 1145 (N.L.R.B. 1994)

1145
314 NLRB No. 183
MEDITE OF NEW MEXICO, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the judge’s findings.
2 We agree with the judge that the claims in this case are not time-
barred by Sec. 10(b) of the Act. The Respondent failed to show that
the Charging Parties had clear notice, prior to July 14, 1992 (6
months before the charges were filed with the Board), that vacancies
occurred in their former, or substantially equivalent, job positions.
See Great Lakes Chemical Corp., 298 NLRB 615 (1990), enfd. 967
F.2d 624 (D.C. Cir. 1992).
3 For the reasons set out by the judge, we affirm his conclusions
that: (1) the Respondent did not have a good-faith belief that M.
Salazar’s conduct was serious enough to intimidate or coerce em-
ployees in the exercise of their Sec. 7 rights; (2) the Respondent’s
letter dated August 21, 1991, to K. Mueller did not constitute an un-
conditional offer of reinstatement; and (3) the Respondent unlawfully
failed to offer A. Tafoya reinstatement to the position of sander fork-
lift operator, which is substantially equivalent to Tafoya’s former po-
sition of saw forklift operator.
4 The Respondent alleges that it was not required to reinstate W.
Cordova because he tendered a written resignation to the company.
The judge found it unnecessary to determine whether W. Cordova
actually tendered a resignation and whether it was effective. Because
we find that the Respondent violated the Act by preventing W. Cor-
dova from bidding on posted jobs, it is necessary to determine
whether W. Cordova effectively terminated his employment relation-
ship with the Respondent. We remand this issue to the judge to
make such findings. See Augusta Bakery, 298 NLRB 58 (1990),
enfd. 957 F.2d 1467 (7th Cir. 1992).
5 As discussed infra, we find that the judge erred in failing to se-
quester the General Counsel’s witnesses, including the Charging Par-
ties, during the hearing pursuant to Unga Painting, 237 NLRB 1306
(1978).
Medite of New Mexico, Inc. and 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.
Cases 28–CA–11040, 28–CA–11281–1, –2, –4, –6
through –10, –12, –13, and –19
September 15, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On May 13, 1993, Administrative Law Judge
George Christensen issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Parties filed
cross-exceptions, supporting briefs, and answering
briefs to the Respondent’s exceptions. The Respondent
also filed an answering brief to the General Counsel’s
and the Charging Parties’ cross-exceptions and a reply
to the General Counsel’s and the Charging Parties’ an-
swering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,
as modified below, and to adopt the recommended
Order, as modified.
Introduction
The issues presented by the parties’ exceptions are
whether the Respondent violated Sections 8(a)(1) and
(3) of the Act by (1) failing to reinstate former eco-
nomic strikers or (2) failing to give them an oppor-
tunity to bid on posted vacancies, after the former
strikers had tendered unconditional offers to return to
work.2 We agree with the judge’s finding that the Re-
spondent violated the Act by failing to reinstate P.
Montano, K. Mueller, M. Salazar, P. Salazar, and A.
Tafoya. We also agree with the judge that the Re-
spondent did not violate the Act by failing to reinstate
F. Casias, B. Coca, L. Cordova, W. Cordova, H. Jones,
G. Montoya, and M. Sanchez because there were no
vacancies in the positions that these individuals held
prior to the strike, or in substantially equivalent posi-
tions.3
However, contrary to the judge, we find that the Re-
spondent violated the Act by failing to allow L. Cor-
dova, H. Jones, F. Casias, and M. Sanchez an oppor-
tunity to bid on vacancies posted by the Respondent
that were open to bidding by all of its employees re-
gardless of their current or, as in the case of the strik-
ers, their past jobs. This finding will also extend to W.
Cordova,4 providing that it is determined that he did
not effectively resign from the Respondent’s employ,
and to Coca and Montoya, providing that they did not
engage in the alleged strike misconduct, or that, if they
did, the misconduct was not serious enough to cause
them to lose the Act’s protection. The judge, in light
of his finding that there was no merit in the oppor-
tunity-to-bid allegations, did not pass on these provi-
sional issues. Thus, we remand to the judge to deter-
mine whether, based on untainted evidence,5 Coca and
Montoya engaged in strike misconduct and, if they did,
whether they forfeited their right to reinstatement.
1. Alleged strike misconduct of P. Salazar
and A. Tafoya
The Respondent has excepted to the judge’s findings
that the Respondent did not have a good-faith belief
that P. Salazar and A. Tafoya engaged in strike mis-
conduct that would interfere with or coerce employees
in the exercise of their Section 7 rights. Although we
agree that the Respondent did establish that it held a
good-faith belief that P. Salazar and A. Tafoya en-
gaged in strike misconduct, we find that the actual
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Chairman Gould questions the rationale of Gem Urethane that
holds or implies that an employer’s good-faith belief of a striker’s
misconduct may be based solely on a CB complaint issued by the
Region alleging strike misconduct. He finds it unnecessary to reach
that issue here, however, because it has no effect on the ultimate
finding here with which he agrees.
7 The Respondent alleges that A. Tafoya was involved in the June
20, 1990, altercation between some of the strikers and J.
Mascarenas, a nonstriker. The judge found, based on credited testi-
mony, that Tafoya was not involved in the fracas and did not hit
Mascarenas. The Respondent contends that the judge erred in ex-
cluding from evidence a videotape proffered by the Respondent pur-
porting to show that Tafoya was involved in the incident. We find
that the judge properly excluded the videotape because an inadequate
foundation was laid for its admission. The Respondent proffered the
videotape during R. Cordova’s testimony. R. Cordova was a guard
at the plant and he videotaped the June 20, 1990 incident. The prof-
fered videotape, however, was edited prior to the trial by someone
other than R. Cordova, and R. Cordova was unable to testify regard-
ing how the tape was edited. For this reason, we agree with the
judge that the tape was inadmissible. Further, we find that the Re-
spondent was not prejudiced by the exclusion of the videotape be-
cause, in the judge’s discussion of the June 20, 1990, incident, the
judge indicates that the film does not show that A. Tafoya hit
Mascarenas. In addition, as the judge found, the Respondent’s wit-
nesses, Mascarenas and Alexander, testified that they did not see
Tafoya join in the fracas and R. Cordova testified on cross-examina-
tion that he did not see Tafoya hit Mascarenas.
conduct was not serious enough to preclude P.
Salazar’s and Tafoya’s reinstatement.
Upon unconditional offers to return to work, former
economic strikers are entitled to reinstatement to their
former, or substantially equivalent, positions, as the
positions become vacant and available. NLRB v.
Fleetwood Trailer Co., 389 U.S. 375 (1967); NLRB v.
Great Dane Trailers, 386 U.S. 26 (1967). An em-
ployer, however, may refuse to reinstate a former strik-
er if the employer has a good-faith belief that the
former striker engaged in strike misconduct that may
reasonably tend to coerce or intimidate employees in
the exercise of their Section 7 rights, including their
right to refrain from striking or from supporting the
strikers. Clear Pine Mouldings, 268 NLRB 1044
(1984), affd. 765 F.2d 148 (9th Cir. 1985), cert. denied
474 U.S. 1105 (1986). The employer’s good-faith be-
lief may be based on a CB complaint issued by the
Region alleging strike misconduct. Gem Urethane, 284
NLRB 1349, 1353 (1987).6 If the employer establishes
that it has such a good-faith belief, then the burden
shifts to the General Counsel to show that the alleged
discriminatee did not, in fact, engage in the alleged
misconduct or that the conduct was not serious enough
to deny the discriminatee the protection of the Act. Id.
In this case, the judge found that P. Salazar and A.
Tafoya, among other strikers, struck a foreman’s vehi-
cle with their cardboard picket signs while the vehicle
was stopped at the picket line, but that the vehicle was
not damaged during this incident. Later the same day,
P. Salazar exchanged words with the owner of the ve-
hicle, Ortiz, because Ortiz was following Salazar’s car.
Based on this conduct and reports of other conduct, in-
cluding an incident on June 20, 1990, Region 28
issued a CB complaint alleging that the union violated
Section 8(b)(1)(A) of the Act. The judge found that
these were the only incidents of misconduct involving
P. Salazar and A. Tafoya.7
After the union was decertified, the CB case settled.
The settlement agreement included a nonadmissions
clause. As the Board held in Gem Urethane, settlement
of the CB case precludes its use as evidence of actual
misconduct, but the Respondent can still use the
issuance of the complaint in the CB case to establish
its good-faith belief that misconduct occurred. 284
NLRB at 1353. The judge erred by not considering or
discussing the CB case in his analysis of whether the
Respondent had established its good-faith belief. We
find that, based on the CB complaint, the Respondent
did show that it had a good-faith belief that P. Salazar
and A. Tafoya engaged in strike misconduct. This find-
ing, however, does not end our inquiry.
Although we find that the Respondent showed that
it had a good-faith belief that P. Salazar and A. Tafoya
engaged in strike misconduct, we affirm the judge’s ul-
timate conclusion that the Respondent violated the Act
when it failed to reinstate these former strikers because
we find that the conduct engaged in by them is insuffi-
cient to constitute misconduct which may reasonably
tend to coerce or intimidate employees in the exercise
of their Section 7 rights. The conduct in this case is
distinguishable from the strike misconduct in Clear
Pine Mouldings and Gem Urethane. In Gem Urethane,
the strikers blocked ingress to the plant, surrounded a
car, held a baseball bat in a threatening manner,
pounded on cars, threatened to kill and beat up non-
striking employees, threatened to blow up the plant,
threatened to burn nonstrikers’ cars, and threatened to
‘‘get’’ the nonstrikers and their family members. 284
NLRB at 1353–1354. In Clear Pine Mouldings, the
strikers carried clubs, tire irons, baseball bats, and ax
handles and were accompanied by dogs. In addition,
one striker swung a 2-foot long club at a nonstriking
employee and struck a nonstriking employee’s car. 268
NLRB at 1047–1048. In both cases, the Board found
that the misconduct could reasonably tend to coerce
and intimidate employees in the exercise of their Sec-
tion 7 rights. 284 NLRB at 1353 and 268 NLRB at
1047.
In contrast, in this case, Ortiz briefly stopped his car
at the picket line because some children were playing
in the road. The judge found that P. Salazar and A.
Tafoya hit the foreman’s car with cardboard picket
signs, but that they did not damage the car. Ortiz was
able to pull away and enter the highway. We find that
this brief incident does not amount to the type of seri-
ous conduct that would intimidate nonstriking employ-
ees from crossing the picket line and exercising their
1147MEDITE OF NEW MEXICO, INC.
8 The judge found that the Respondent did not show that it had
a good-faith belief that P. Salazar engaged in serious misconduct be-
cause the only witness to testify regarding the Respondent’s belief
was J. Stone, who the judge found did not become the personnel di-
rector until 2 months after a vacancy opened in P. Salazar’s job.
Thus, the judge concluded that Stone was not in a position to know
the Respondent’s belief regarding Salazar at the time that a vacancy
occurred in his job. The judge was mistaken as to the date that Stone
became the personnel director and we thus disavow any reliance on
this reasoning. However, as discussed above, we specifically find
that the conduct engaged in by P. Salazar was not of such a serious
nature as to coerce or intimidate employees in the exercise of their
Sec. 7 rights.
9 In Aqua-Chem, the Board held that in order to find that an em-
ployer violated the Act by recalling laid-off permanent replacement
workers ahead of unreinstated strikers, the General Counsel must es-
tablish that a true Laidlaw vacancy existed by showing that, based
on objective factors, the laid-off permanent workers had no reason-
able expectancy of being recalled. 288 NLRB at 1110. The objective
factors to consider in determining a replacement’s expectancy of re-
call include evidence of the employer’s past business experience, the
employer’s future plans, the length of the layoff, the circumstances
of the layoff, and what the employee was told regarding the likeli-
hood of his recall. After the General Counsel establishes a prima
facie case, the burden shifts to the employer to show that, in fact,
no Laidlaw vacancy exists or that its failure to recall the strikers was
based on legitimate and substantial business justifications. Id.
10 The job progressions are: (1) from utility to formline or press
operator; (2) from sander grader to sander operator; (3) from saw
helper to saw operator; (4) from tally person to loader; (5) from
bander to shuffler operator; (6) from refiner helper to refiner oper-
ator; and (7) from boiler helper to boiler operator III.
Section 7 rights. See Preterm, 273 NLRB 683, 698,
704 (1984) (adopting a judge’s finding that the allega-
tion that strikers’ pounding on a nonstriker’s car was
insufficient to constitute serious misconduct). Cf. Cen-
tral Mack Sales, 273 NLRB 1268 (1984) (striker en-
gaged in serious misconduct when he intentionally beat
on a nonstriking employee’s car with a club, inflicting
$200 in damage). In addition, P. Salazar’s brief ex-
change of words with Ortiz later that day, which in-
cluded no threats by Salazar, does not disqualify
Salazar from reinstatement. Gem Urethane, 284 NLRB
at 1354 fn. 21.8
2. Failure to reinstate P. Montano
The Respondent excepts to the judge’s finding that
the Respondent violated the Act by failing to offer P.
Montano a vacancy that occurred in the cutoff saw
helper position, the position that Montano held just
prior to going out on strike. The Respondent argues
that Montano’s position was filled by R. Martinez
when Montano went on strike. Martinez had been
hired as a laborer, was promoted to cutoff saw helper
on November 13, 1990, was demoted to laborer, and
was promoted again to cutoff saw helper on September
20, 1991. Montano tendered his unconditional offer to
return to work on December 4, 1990. The judge found
that Montano should have been reinstated to the cutoff
saw helper vacancy filled by Martinez on September
20, 1991. We agree.
The Respondent explained that because of a general
reduction in force, it cut the number of cutoff saw
helpers and demoted Martinez to laborer. The Re-
spondent argues that, under Aqua-Chem, 288 NLRB
1108 (1988), enfd. 910 F.2d 1487 (7th Cir. 1990), cert.
denied 501 U.S. 1238 (1991),9 the General Counsel
failed to satisfy its burden of proof that Martinez had
no reasonable expectancy of recall. We find no merit
to this argument. This case is distinguishable from
Aqua-Chem because Martinez was not laid off from a
position but was demoted from the cutoff saw helper
position to the position of laborer. Further, when the
September 20, 1991 vacancy occurred, Martinez was
not automatically awarded the job. Instead, the Re-
spondent posted the vacancy for bid by all of the em-
ployees. This contradicts the Respondent’s contention
that Martinez could reasonably expect to be returned to
that position and that therefore no real vacancy existed.
Consequently, this reinstatement issue is governed by
the established rule that strikers who have uncondition-
ally offered to return to work are entitled to be rein-
stated to their former position when a vacancy occurs.
See Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414
F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920
(1970).
3. Discriminatory exclusion from job bidding
The judge found, and we agree, that vacancies did
not occur in the jobs held prior to the strike by Casias,
Coca, L. Cordova, W. Cordova, Jones, Montoya, and
Sanchez, or in substantially equivalent positions. The
judge also rejected the General Counsel’s and Charg-
ing Parties’ alternative argument that the Respondent
violated the Act by denying these individuals the op-
portunity to bid on any job vacancies posted by the
Respondent. For the following reasons, we reverse the
judge’s finding on this issue.
The Respondent fills job vacancies in two ways. Va-
cancies in certain job groups are filled by automati-
cally promoting employees within a set progression.10
The remaining vacancies are filled through a bid pro-
cedure in which the vacancy is posted on a bulletin
board for 5 days and any full-time active employee is
permitted to bid for the job. Employees are allowed to
bid on, and have been awarded, less skilled and lower
paying jobs. The jobs are usually awarded to the most
senior applicant, although the applicant’s qualifications
are also considered. The successful applicant is given
a 30-day trial period in the new position, and, if he is
not performing satisfactorily, the Respondent will ei-
ther agree to extend the trial period or will move the
employee back to his former position.
The General Counsel demonstrated that the Re-
spondent posted a number of job vacancies for bid
after the above-named strikers tendered their offers to
return to work. The former strikers were not informed
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Chairman Gould questions the holding in Rose Printing and is
of the opinion that the Board should agree with the Supreme Court
that ‘‘[i]f and when a job for which the striker is qualified becomes
available, he is entitled to an offer of reinstatement.’’ NLRB v.
Fleetwood Trailer Co., 389 U.S. 375, 381 (1965). He finds it unnec-
essary to reach that issue here, however, because it has no effect on
the ultimate finding with which he agrees.
12 Because the positions put up for bid are vacant positions, a
striker’s successful bid for the position does not result in displacing
any of the strike replacements or earlier returned strikers. Therefore,
our ruling here is not inconsistent with the principles underlying
NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (l938). Cf.
TWA v. Flight Attendants, 489 U.S. 426, 433–439 (l989) (holding
that an employer is not obligated to permit strikers to use their se-
niority to displace less senior strike ‘‘crossovers’’).
of any of the job vacancies posted for bid. The Gen-
eral Counsel also showed that after the strike was over,
and the Union was decertified, the Respondent’s plant
manager issued instructions to deny access to the plant
premises to the former strikers.
It is well established that economic strikers who
have made an unconditional offer to return to work are
entitled to full reinstatement to positions left vacant by
the departure of permanent replacements. Laidlaw,
supra. The Board has subsequently made it clear that
unreinstated strikers are entitled to reinstatement only
to the job position that they held just prior to the strike
or to a substantially equivalent position. Rose Printing,
304 NLRB 1076 (1991).11 An employer is not required
to reinstate former strikers to positions that they are
qualified to perform if those positions are not substan-
tially equivalent to their former jobs. Id. at 1077;
Highlands Medical Center, 278 NLRB 1097 (1986).
In Rose Printing, the Board described the purpose of
these rules as ensuring that ‘‘strikers who have uncon-
ditionally offered to return to work are to be treated
the same as they would have been had they not with-
held their service. They are therefore entitled to return
to those jobs or substantial equivalents if such posi-
tions become vacant, and they are entitled to non-
discriminatory treatment in their applications for other
jobs.’’ 304 NLRB at 1078 (emphasis added). The
Board went on to note that although former strikers are
not guaranteed a preference for nonequivalent jobs,
employers are not free to discriminate against them, by
preferring new applicants or nonstrikers, simply be-
cause they had been on strike. Id. See also Oregon
Steel Mills, 291 NLRB 185 fn. 1 (1988), enfd. mem.
No F.2d cite 134 LRRM 2432 (9th Cir. 1989), cert.
denied 496 U.S. 925 (1990) (respondent unlawfully
failed to offer unreinstated strikers an opportunity to
bid on job vacancies until after nonstrikers and strike
replacements failed to bid on the jobs).
Applying these principles to the facts in this case,
it is clear that the Respondent’s failure to allow the
former strikers to bid on the vacancies posted for
bid—a right extended to all other of its employees—
constituted a form of discrimination against the former
strikers. Although the former strikers were not entitled
to reinstatement to the jobs they held prior to the strike
because there were no vacancies, they were entitled to
be free from discrimination when applying for other
positions and, thus, were entitled to notice of job post-
ings and to an opportunity to bid on, and be fairly con-
sidered for, those posted jobs. For these reasons, we
find that the Respondent violated Section 8(a)(3) of the
Act by preventing the Charging Parties from bidding
on posted vacancies.
The Respondent contends that by accepting this the-
ory, the Board is creating a new duty for employers,
separate and distinct from the duty imposed by
Laidlaw. We agree that the statutory obligation at issue
here is different from the Laidlaw obligation, but we
do not agree that it is new. This is not a matter of
automatic reinstatement entitlement; it is a matter of
being free from that discrimination in hire or tenure of
employment which is expressly prohibited by Section
8(a)(3) and (1) of the Act. The Respondent surely
would not argue that it would be proceeding lawfully
under the Act if it announced after a strike that it was
designating certain jobs as positions to which only
those who had not engaged in the strike could aspire.
The Respondent has engaged in analogous conduct
here. By effectively prohibiting the former strikers
from bidding on the posted vacancies through failing
to notify them of job postings and denying them access
to the plant, the Respondent discriminated against them
on the basis of their former-striker status. This is dis-
criminatory treatment that violates the Act quite apart
from any Laidlaw obligation. Rose Printing, supra, 304
NLRB at 1078.12
4. Witness sequestration issue
The Respondent excepts to the judge’s failure to se-
quester the General Counsel’s witnesses while they
were testifying about events to which others would
also testify. We agree with the Respondent that, pursu-
ant to Unga Painting, 237 NLRB 1306 (1978), the
General Counsel’s witnesses, including the Charging
Parties, should have been sequestered during such tes-
timony. For the reasons discussed below, however, we
find that the Respondent was not prejudiced in the
presentation of its case regarding its failure to reinstate
M. Salazar, P. Salazar and A. Tafoya, so there is no
reason to disturb findings concerning them. We re-
mand to the judge for findings regarding B. Coca’s
and G. Montoya’s involvement in strike misconduct.
On remand, we direct the judge not to rely on evi-
dence tainted by the failure to sequester the General
Counsel’s witnesses.
In Unga Painting, the Board established its limited
witness exclusion rule which excludes alleged
discriminatees from the portions of the hearing when
another of the General Counsel’s or charging party’s
1149MEDITE OF NEW MEXICO, INC.
witnesses is testifying about events to which the
discriminatees have, or will, or may, testify, unless the
judge finds that special circumstances warrant the
discriminatees’ unrestricted presence or total exclusion
when not testifying. 237 NLRB at 1307. Failure to se-
quester witnesses, or the violation of a sequestration
order, may result in the tainted testimony’s being
stricken from the record (if a party can show that it
was prejudiced by the failure to sequester), or in a
stricter scrutiny of the tainted testimony.
In this case, the Respondent requested at the begin-
ning of the hearing that the General Counsel’s and
Charging Parties’ witnesses, including the Charging
Parties themselves, be sequestered while other wit-
nesses for those parties were testifying about common
events. Without citing any special circumstances, the
judge denied the Respondent’s request. The Respond-
ent contends that the judge’s ruling prejudiced its pres-
entation of its case, specifically with regard to showing
that B. Coca, G. Montoya, M. Salazar, P. Salazar, and
A. Tafoya engaged in strike misconduct. We find no
merit to the Respondent’s claim regarding M. Salazar,
P. Salazar, and A. Tafoya.
M. Salazar testified only to incidents involving him-
self, and none of the General Counsel’s other wit-
nesses testified regarding M. Salazar’s conduct; thus,
the Respondent was not prejudiced by M. Salazar’s
presence during the hearing or by other witnesses’
presence during his testimony.
The judge found that P. Salazar and A. Tafoya
struck Ortiz’ vehicle but, as discussed above, we found
that their actions were not serious enough to bar their
reinstatement. Our finding does not rest on any evi-
dence tainted by the failure to sequester the General
Counsel’s witnesses. In addition, the judge’s finding
regarding Tafoya’s role in the June 20, 1990, incident
was based in part on the testimony of the Respondent’s
witnesses—not merely on the testimony of the General
Counsel’s witnesses. Finally, the judge found that
Tafoya was not in a car with Montoya and Coca on
July 11, 1990, that was allegedly involved in strike
misconduct. The judge’s finding is based solely on
Tafoya’s credibility. The judge did not rely on any of
the General Counsel’s other witnesses to make this
finding. Because the judge’s finding regarding P.
Salazar’s and A. Tafoya’s conduct was not contra-
dicted by, and in fact is supported by, the Respond-
ent’s witnesses, we find that the Respondent was not
prejudiced by the presence of P. Salazar and A. Tafoya
during the entire hearing.
Because the judge found that there were no vacan-
cies in their positions, the judge did not determine
whether the Respondent had a good-faith belief that
Montoya and Coca engaged in strike misconduct or
whether Montoya or Coca, in fact, engaged in strike
misconduct that would interfere with or coerce em-
ployees in the exercise of their Section 7 rights. We
have found, however, that the Respondent violated the
Act by preventing Montoya and Coca from bidding on
posted vacancies. And, as discussed with respect to P.
Salazar and A. Tafoya, we find that the Respondent es-
tablished that it had a good-faith belief that Montoya
and Coca engaged in strike misconduct as alleged in
the CB complaint. We therefore remand Cases 28–
CA–11281–6 and 28–CA–11281–19 to the judge to
determine (1) whether the record shows that Coca and
Montoya did not engage in the alleged strike mis-
conduct and (2) if they did engage in the misconduct,
whether the misconduct was serious enough to remove
them from the protection of the Act. In remanding
these issues, we direct the judge to rely only on evi-
dence that was not tainted by the presence of the Gen-
eral Counsel’s and the Charging Parties’ witnesses dur-
ing testimony of common events.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 2.
‘‘2. Since December 1990, James D. Stone has been
Medite’s personnel director, a supervisor and agent of
Medite acting on its behalf within the meaning of Sec-
tion 2 of the Act.’’
2. Insert the following for Conclusion of Law 5 and
reletter the existing Conclusion of Law 5 as Conclu-
sion of Law 6.
‘‘5. By failing and refusing to offer L. Cordova, H.
Jones, F. Casias, and M. Sanchez the opportunity to
bid on job vacancies, without establishing any legiti-
mate business justification, the Respondent violated
Section 8(a)(3) and (1) of the Act.’’
AMENDED REMEDY
Having found that the Respondent, Medite of New
Mexico, Inc., has engaged in certain unfair labor prac-
tices, we shall order it to cease and desist and take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent shall be ordered to immediately re-
call Pete Montano, Karl Mueller, Max Salazar, Perry
Salazar, and Arturo Tafoya to the positions they occu-
pied at the time they went on strike, or to substantially
equivalent positions, with full seniority and all other
rights and privileges, and to make Montano, Mueller,
M. Salazar, P. Salazar, and Tafoya whole for the dis-
crimination practiced against them by payment to each
of the sum of money equal to what each would have
earned from the date that each should have been re-
called until the date each is recalled, less interim earn-
ings during the period, computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest on the sum due to each computed
in accordance with the formula in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The same remedy will apply to Montoya and Coca if it is found,
on and after remand, that they did not lose the protection of the Act,
and to W. Cordova if it is found that he did not effectively terminate
his employment relationship with the Respondent.
The Respondent shall also be ordered to offer rein-
statement to L. Cordova, H. Jones, F. Casias, and M.
Sanchez if, at the compliance stage of this proceeding,
these former strikers are determined to have been de-
nied reinstatement as a consequence of the Respond-
ent’s failure to give them an opportunity to bid on job
vacancies, and the Respondent shall make them whole
for any loss of pay and benefits they may have suf-
fered by reason of the Respondent’s discrimination
against them, such payment to be made in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest to be computed in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).13
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Medite of New Mexico, Inc., Las Vegas, New Mexico,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b) and
reletter the subsequent paragraph.
‘‘(b) Refusing to offer to qualified unreinstated
strikers the opportunity to bid on job vacancies.’’
2. Substitute the following for paragraph 2(b) and
reletter the subsequent paragraphs.
‘‘(b) Offer reinstatement and backpay to L. Cor-
dova, H. Jones, F. Casias, and M. Sanchez, if at the
compliance stage of this proceeding, those individuals
are determined to have been denied reinstatement as a
consequence of the Respondent’s failure to offer them
an opportunity to bid on job vacancies in the manner
set forth in the remedy section of this decision.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that Cases 28–CA–11281–
6, 28–CA–11281–7, and 28–CA–11281–19 are severed
from the above-captioned proceeding and are re-
manded to Administrative Law Judge George
Christensen for the limited purpose of determining (1)
whether W. Cordova effectively terminated his em-
ployment relationship with the Respondent; and (2)
whether the record shows that B. Coca and G. Mon-
toya did not engage in the alleged strike misconduct
or, if they did engage in the misconduct, whether the
misconduct was serious enough to coerce or intimidate
employees in the exercise of their Section 7 rights. In
making these latter determinations, we direct the judge
to rely only on evidence and testimony that is un-
tainted by the failure to sequester witnesses during tes-
timony regarding common events.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a Supplemental Decision set-
ting forth the above determinations in Cases 28–CA–
11281–6, 28–CA–11281–7, and 28–CA– 11281–19 in-
cluding credibility resolutions, findings of fact, conclu-
sions of law, and a recommended order. Copies of
such Supplemental Decision shall be served on all the
parties, after which the provisions of Section 102.46 of
the Board’s Rules and Regulations shall be applicable.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail or refuse to recall our former
striking employees to positions they occupied at the
time they went out on strike or to substantially equiva-
lent positions when vacancies in those positions occur
and following their tender to us of an unconditional
offer to return to work.
WE WILL NOT refuse to offer to qualified
unreinstated strikers the opportunity to bid on job va-
cancies in preference to nonstrikers and strike replace-
ments on the payroll.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed under Section 7 of the Act.
WE WILL recall Pete Montano, Karl Mueller, Max
Salazar, Perry Salazar, and Arturo Tafoya to the posi-
tions they held when they went out on strike on June
11, 1990, or to substantially equivalent positions.
WE WILL make Pete Montano, Karl Mueller, Max
Salazar, Perry Salazar, and Arturo Tafoya whole for
any wage or benefit losses they suffered by virtue of
our unlawful discrimination against them, restore them
to full seniority and all other rights, privileges and
benefits to them, and pay interest on the sums due to
each of them.
WE WILL offer reinstatement and backpay, with in-
terest, to L. Cordova, H. Jones, F. Casias, and M.
Sanchez, if it is determined that they were unlawfully
denied reinstatement as a consequence of our failure to
offer them an opportunity to bid on job vacancies be-
cause we preferred nonstrikers and strike replacements
then on the payroll.
MEDITE OF NEW MEXICO, INC.
1151MEDITE OF NEW MEXICO, INC.
Lewis Harris, for the General Counsel.
Craig Fretwell (Northern New Mexico Legal Services), of
Las Vegas, New Mexico, for Perry R. Salazar et al.
Nicholas J. Noeding & Margaret R. McNett (Hinkle, Cox,
Eaton, Coffield & Hensley), of Albuquerque, New Mexico,
for Medite.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge. During
a 1990 strike called by the Western Council of Industrial
Workers, United Brotherhood of Carpenters and Joiners of
America, AFL–CIO (the Union), Medite of New Mexico,
Inc. (Medite) replaced all of the striking employees. The
Union was subsequently (in October 1990) decertified as the
collective-bargaining representative of Medite’s production
and maintenance employees. Following the decertification,
strikers began tendering offers to return to work.
On August 13, 1991, ex-striker Perry Salazar (P. Salazar)
filed a charge with Region 28 of the National Labor Rela-
tions Board (the Board) alleging Medite violated Section
8(a)(1) and (3) of the National Labor Relations Act (the Act)
by failing to reinstate him (Case 28–CA–11040). In October
1991, ex-striker Paul Garcia filed a charge alleging Medite
violated the Act by refusing him entry to the plant premises
(Case 28–CA–11159) while in the employ of BTU Concrete,
Inc. (BTU) delivering BTU products to Medite, causing his
discharge by BTU. On January 14, 1992, Garcia filed an-
other charge alleging Medite violated the Act by failing to
reinstate him (Case 28–CA–11281–15). On the latter date,
ex-strikers Leroy Cordova (L. Cordova), Arturo Tafoya, Max
Salazar (M. Salazar), Benny Coca, William Cordova (W.
Cordova), Karl Mueller, Pete Montano, Homer Jones,
Feliverto Casias, Manual Sanchez, and George Montoya filed
similar charges (Cases 28–CA–11281–1, 2, 4, 6—8, 10, 12,
13, and 19).
On February 28, 1992, the Regional Director for Region
28 consolidated Cases 28–CA 11281–1, 2, 4, 6, 7, 9, 10, 12,
13, 15, and 19, issued a consolidated complaint encom-
passing those charges, and set the hearing on the issues
raised by the complaint for June 2, 1992.
On March 12, 1992, the Regional Director consolidated
Cases 28–CA–11040 and 28–CA–11159 with the other cases
listed above and rescheduled the hearing to May 5, 1992.
I conducted a hearing on the issues raised in the above-
listed cases on May 5, 6, 7, and 8, 1992, at Las Vegas, New
Mexico.
During the hearing, the parties reached a settlement of the
issues raised by Cases 28–CA–11159 and 28–CA–11281–15,
which I approved.
Subsequent to the hearing, Counsel Harris moved to re-
open the record, consolidate a complaint issued in Case 28–
CA–11515 with the other cases set out above, and to set a
hearing date therefor. I granted the motion and the reopened
hearing was set to resume on November 5, 1991. On the day
before the date the hearing was to resume, the parties
reached a settlement of the issues raised by Case 28–CA–
11515, which I approved.
The consolidated complaint alleges Casias et al. uncondi-
tionally offered to return to work following the October 1990
decertification of the Union; Medite hired new employees
for, and transferred employees to, positions which should
have been offered to Casias et al., following its receipt of
those offers without offering Casias et al., reinstatement to
those positions; and that Medite thereby violated Section
8(a)(1) and (3) of the Act.
Medite in its answer to the consolidated complaint denied
Casias et al. unconditionally offered to return to work; de-
nied subsequent to its receipt of offers to return to work by
Casias et al. it hired new employees and transferred employ-
ees to jobs which it should have offered to Casias et al.; de-
nied it failed to offer Casias et al. reinstatement to such jobs;
denied it violated the Act; and affirmatively alleged Medite
was entitled to bar the reinstatement of Coca, Montoya, and
the two Salazars because Medite had an honest belief the
four engaged in strike misconduct and engaged in strike mis-
conduct; further alleged other Charging Parties secured em-
ployment at substantially equivalent jobs and abandoned their
right to reinstatement; and lastly alleged the Charging Parties
are not entitled to any relief because their charges were un-
timely filed.
Medite subsequently took the position it was entitled to
bar the reinstatement of Coca and Mueller because they
never offered to return to work; that it was entitled to bar
the reinstatement of Tafoya because it had an honest belief
Tafoya engaged in strike misconduct; and that it was entitled
to bar the reinstatement of W. Cordova because he submitted
a written resignation of his employment.
The issues created by the foregoing are whether:
1. The Charging Parties are barred from any relief under
Section 10 (b) of the Act.
2. The 12 unconditionally offered to return to work.
3. Medite failed to offer reinstatement to any of the 12.
4. Medite hired new employees or transferred employees
to jobs which it should have offered the 12 following its re-
ceipt of unconditional offers from the 12 to return to work.
5. Medite violated the Act.
6. Presuming Medite violated the Act by failing or refus-
ing to reinstate Coca, Montoya, the two Salazars and Tafoya,
was Medite entitled to deny Coca, Montoya, the two
Salazars, and Tafoya reinstatement because it held an honest
belief they engaged in misconduct during the strike.
7. Presuming Medite violated the Act by failing or refus-
ing to reinstate Coca and Mueller, was Medite entitled to
deny Coca and Mueller reinstatement because they failed to
unconditionally apply for reinstatement.
8. Presuming Medite violated the Act by failing or refus-
ing to reinstate the Charging Parties, was Medite entitled to
deny such reinstatement because one or more of the Charg-
ing Parties acquired substantially equivalent employment to
jobs they held at Medite prior to striking and abandoned
seeking reinstatement;.
9. Presuming Medite violated the Act by failing or refus-
ing to offer reinstatement to W. Cordova, was Medite enti-
tled to deny W. Cordova reinstatement because he submitted
a written resignation of his employment to Medite.
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although every apparent or nonapparent conflict in the evidence
has not been specifically resolved below, my findings are based on
my examination of the entire record, my observation of the wit-
nesses’ demeanor while testifying and my evaluation of the reli-
ability of their testimony; therefore any testimony which is incon-
sistent with my findings is hereby discredited.
2 Some of the earlier jobs listed were performed at the sawmill,
prior to a transfer to the plant. Medite’s predecessor ceased to oper-
ate the sawmill about 7 years prior to the hearing.
Counsel were afforded full opportunity to adduce evi-
dence, examine and cross-examine witnesses, argue, and file
briefs. All three filed briefs.
Based on my review of the entire record, observation of
the witnesses, perusal of the briefs and research, I enter the
following
FINDINGS OF FACT1
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find at
all pertinent times Medite was an employer engaged in com-
merce in a business affecting commerce and the Union was
a labor organization within the meaning of Section 2 of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary
Medite and its predecessor, Montano de Fibre, have oper-
ated a plant at Las Vegas, New Mexico, for some time, em-
ploying a work force of a little over 100 employees to create
fibreboard panels, cutting the panels to sizes specified by its
customers, sanding the panels, and binding, packing, and
shipping the final products.
In 1990, Medite utilized the following job classifications
in identifying the jobs performed by its work force at the
plant: PRODUCTION: laborer, refiner/boiler helper, utility,
press operator, forming operator, refiner operator, dozer oper-
ator and storage operator; FINISH END: laborer, sticker, saw
forklift operator, saw helper, saw operator, bander, shuffler
operator, sander forklift operator, sander grader and sander
operator; SHIPPING: stager, tally person, loader and loader
leadman; MAINTENANCE: millwright apprentice, millwright
journeyman, millwright/machinist, millwright leadman, oiler,
mechanic, electrician apprentice and electrician/journeyman;
BOILER: boiler helper, boiler operator III, II and I; ENVIRON-
MENTAL: laborer and truckdriver.
The Union was certified as the collective-bargaining rep-
resentative of Medite’s production and maintenance employ-
ees at the plant in mid-1989 and, unsuccessful in its efforts
to negotiate a contract covering the wages etc. of those em-
ployees, called the employees out on strike in support of its
contract proposals in June 1990. About 60 employees re-
sponded to the strike call, including Casias, Coca, L. Cor-
dova, W. Cordova, Garcia, Jones, Montano, Montoya,
Mueller, Pereara, Sanchez, M. Salazar, P. Salazar, and
Tafoya.
The strike ended with the October 1990 union decertifica-
tion.
B. The Jobs Held by Casias et al. Prior to the Strike
Prior to the strike Casias et al. worked in the following
successive job classifications:2
l. Casias—oiler
2. Coca— welder, log loader, laborer, storage oper-
ator, millwright
3. L. Cordova—millwright
4. W. Cordova—cleaner operator, rip chain, laborer,
utility trainee, saw forklift operator, bander, shuffler op-
erator
5. Jones—environmental (outside laborer), saw help-
er, bander, sander grander, sander operator
6. Montano—environmental (outside laborer), la-
borer, saw helper
7. Montoya—welder, millwright
8. Mueller—sticker, laborer
9. Sanchez—welder, utility, laborer, environmental
(outside laborer), saw forklift operator, truckdriver,
millwright 3, millwright leadman, millwright
10. M. Salazar—barker/saw operator, loader, laborer,
bander
11. P. Salazar—laborer, refiner helper, inline saw op-
erator, utility
12. Tafoya—laborer, saw forklift operator
C. The Offers to Return to Work
Casias sent the following letter to Medite on November
14, 1990:
Now that the Union has been decertified and the
strike is over I am writing to request that I be reinstated
in my job.
Your prompt response will be appreciated.
An identical letter was sent to Medite by Coca, L. Cor-
dova, W. Cordova, M. Salazar, P. Salazar, and Tafoya on the
date Casias sent his letter.
Sanchez applied orally for reinstatement in mid-November
1990, by a telephone call to Medite’s personnel director,
James D. Stone.
On December 3, 1990, Jones sent a letter identical to the
Casias letter to Medite.
Identical communications were dispatched by Montano on
December 4, 1990, and by Montoya on December 19, 1990.
Mueller did not make a formal request for reinstatement
until September 17, 1991 (the circumstances prompting the
request are detailed below).
D. Medite’s Responses to Casias et al.
On November 19, 1990, Medite’s plant manager, Michael
L. Miller, sent the following response to Casias’ November
14, 1990 letter:
1153MEDITE OF NEW MEXICO, INC.
3 It was normal practice for the foremen to interview and decide
who to hire when replacements were needed.
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 Sanchez’ mid-November 1990 conversation with Stone,
Stone informed him there were no openings; and on Novem-
ber 19, 1990, Miller sent Sanchez a letter identical to his re-
sponse to Casias’ reinstatement request.
Miller sent a response identical to his response to Casias’
reinstatement request to Coca, L. Cordova, W. Cordova,
Jones, Montano, Montoya, M. Salazar, P. Salazar, and
Tafoya shortly after his receipt of their requests.
E. Medite Policies Vis-a-Vis Ex-Strikers
Following the October 1990 union decertification, Plant
Manager Miller issued instructions to bar any access to the
plant premises by the ex-strikers (other than escorted access
to pick up personal items).
His instructions were followed, resulting in the Garcia
charge and complaint in Case 28–CA–11159 against BTU
and Medite alleging BTU discharged Garcia, who was em-
ployed as a truckdriver, because Medite refused to permit
Garcia to enter Medite’s plant premises to deliver BTU ma-
terial and as evidenced by Stone’s interviewing P. Salazar at
the guard shack outside the plant premises rather that at his
office in the plant to discuss P. Salazar’s reinstatement (de-
tailed below).
Medite did not prepare any preferential hiring list fol-
lowing the end of the strike, only notifying its foremen of
the presence of the ex-striker’s personnel files at the per-
sonnel office for their reference if they so chose when they
needed replacements in their respective departments.3
F. The Alleged Reinstatement Offers
Medite has not offered reinstatement to Casias, Coca, L.
Cordova, W. Cordova, Jones, Montano, Sanchez, M. Salazar,
and Tafoya at any time since Medite’s receipt of their offers
to return to work.
On July 30, 1991, Medite wrote to P. Salazar, stating:
A Utility position has now become available at
Medite of New Mexico.
If you are interested in returning to your former posi-
tion here, you will need to respond to us by Monday,
August 5, 1991. If we do not hear from you by that
date, we will assume you are no longer interested in
working for our Company.
P. Salazar called the plant on August 2, 1991, expressed
his desire to return to work and was requested to appear at
the plant and ask for Personnel Director Stone on his arrival.
He went to the plant and was met outside the plant on Au-
gust 5, 1991, by Stone, who told him the July 30, 1991 com-
munication was a mistake, charges had been filed alleging
misconduct by P. Salazar during the strike and Medite had
decided not to recall him.
Although Mueller did not file any request for reinstate-
ment with Medite, on August 21, 1991, Medite wrote to
Mueller, stating:
A job opening exists at the plant in the Laborer posi-
tion classification. There are several eligible persons
who may be eligible to fill this job. If you are inter-
ested in filling this position, please contact the under-
signed (Personnel Manager Stone) on or before 4:00
PM on Tuesday, August 27, l99l.
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 his receipt of the
August 21, 1991 letter on August 23, 1991. He did not con-
tact Stone until September 3, 1991, at which time he tele-
phoned Stone and stated he was interested in returning to
work. Stone replied since Mueller did not contact him prior
to the date indicated in the letter, August 27, 1991, Medite
had given the job to another qualified person who expressed
interest in it, therefore the job was no longer available.
On September 17, 1991, Mueller wrote to Stone to advise
Stone he wanted to return to work at Medite and requested
he be offered any future openings.
Neither Mueller nor P. Salazar was ever contacted by
Medite and offered employment subsequent to the exchanges
just described.
G. New Hires and Employee Transfers Following the
End of the Strike
On November 7, 1990, Medite hired Tracy Skaggs, An-
drew Espinoza, and Randy Maestas as laborers; on Novem-
ber 20, 1990, Medite hired Martin Gonzales as a laborer; on
November 26, 1990, Medite hired Joseph Thrush, Benny
Armijo, and Curtis Garcia as laborers; on January 7, 1991,
Medite hired Charlie Vigil as a laborer; on January 10, 1991,
Medite hired Clarence Romo and Clarence Romero as labor-
ers; on May 6, 1991, Medite hired Josephine Roybal as a la-
borer; on September 10, 1991, Medite hired Amos Romero
as a laborer; on September 11, 1991, Medite hired Frank
Carrillo and Carmen Lopez as laborers; on November 8,
1991, Medite hired Danny Saiz as a laborer; on December
9, 1991, Medite hired Mike Salazar and Leonard Romero as
laborers; on February 25, 1992, Medite hired Andrie Lucero
as a laborer; on March 27, 1992, Medite hired John Parson
as a laborer; and on April 15, 1992, Medite hired Olmedo
Griego as a laborer.
Subsequent to the hirings just detailed, Skaggs was trans-
ferred to a sticker position, at a higher rate of pay; Espinoza
was transferred to positions as saw helper and bander, at a
higher rate of pay; Maestas was transferred to the position
of sticker at a higher rate of pay; Thrush was transferred to
the utility position at a higher rate of pay; Armijo was trans-
ferred to a position as saw helper at the same rate of pay;
Romero was transferred to positions as sticker and sander
grader at higher rates of pay; and Carrillo was transferred to
a position as sticker at a higher rate of pay.
On November 5, 1990, Johnny Martinez, hired on June 21,
1990, as a laborer, was transferred to a truckdriver position
at a higher rate of pay; on November 18, 1990, Richard Mar-
tinez, hired on July 31, 1990 as a laborer, was transferred to
a saw helper position at a higher rate of pay; on December
18, 1990, Richard Duran, hired on June 21, 1990, as a la-
borer, was transferred to a utility position at a higher rate of
pay; on March 12, 1991, Benito Jaramillo, hired on August
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Personnel Director Stone so testified. He also testified employees
were permitted to and did bid for less skilled and lower paying posi-
tions than the positions they currently held and evidence was devel-
oped employees did bid for and were awarded positions in less
skilled and lower paying levels than the positions they held at the
time they bid.
1, 1990, as a laborer, was transferred to a refiner helper posi-
tion at a higher rate of pay; on March 21, 1991, Michael
Hayes, hired on November 8, 1989, and on March 16, 1990,
working as a refiner helper, was transferred to a saw operator
position at a higher rate of pay; on March 21, 1991, Edward
Gallegos, hired on August 1, 1990, as a laborer, was trans-
ferred to a bander position at a higher rate of pay; on June
12, 1991, William Pena, hired on September 20, 1988, and
on June 6, 1991, working as a storage operator, was trans-
ferred to a sander forklift operator position and on the same
date Edward Gallegos, hired on December 7, 1988, and
working as a laborer on June 6, 1991, was transferred to the
storage operator position vacated by Pena; on July 1, 1991,
John Montoya, hired June 25, 1990, as a laborer, was trans-
ferred to a bander position at a higher rate of pay; on August
5, 1991, Ignacio Gonzales, hired July 2, 1990, as a laborer,
was transferred to a utility position at a higher rate of pay;
on August 21, 1990, Kevin Trujillo, hired as a laborer on
June 29, 1990, was transferred to a utility position at a high-
er rate of pay; on August 27, 1991, Frank Valdez, whose hir-
ing date and classification does not appear in the record, was
transferred to a saw operator position, presumably at a higher
rate of pay; on September 4, 1991, Andy Valdez, hired on
October 4, 1990, as a laborer and transferred on April 2,
1991, to the higher paying position of sticker, was again
transferred to a bander position at a higher rate of pay.
Subsequent to November 1, 1990, other persons hired dur-
ing the 1990 strike and one hired in January 1991 were
transferred to tally person and sticker positions. The transfers
listed above were accomplished through a bid process, with
seniority as the major and usual determining factor.4
An undetermined number of automatic transfers were un-
doubtedly effected within certain job groups as vacancies de-
veloped therein subsequent to the end of the strike, since
Medite followed a policy of automatically promoting em-
ployees up what was designated a progression ladder within
the following categories: (1) from utility to formline or press
operator; (2) from sander grader to sander operator; (3) from
saw helper to saw operator; (4) from tally person to loader;
(5) from bander to shuffler operator; (6) from refiner helper
to refiner operator; and (7) from boiler helper to boiler oper-
ator III. For example, Mark Dominguez, hired as a laborer
during the strike, was progressed to sander grader 1 month
after his hire and to sander operator 1 month later.
H. Qualifications of Casias et al. for Jobs Available
After the Strike Ended
Prior to the strike, W. Cordova, Jones, and M. Salazar
worked as banders; W. Cordova, Sanchez, and Tafoya
worked as saw forklift operators; Montano and Jones worked
as saw helpers; Montano, Jones, and Sanchez worked as en-
vironment employees (outside laborers); P. Salazar worked as
a saw operator; W. Cordova, Montano, Mueller, M. Salazar,
P. Salazar, and Tafoya worked as laborers; Coca, L. Cor-
dova, Montoya, and Sanchez worked as millwrights; Casias
worked as an oiler; P. Salazar worked as a utility employee;
P. Salazar worked as a refiner helper; Jones worked as a
sander operator and as a sander grader; Sanchez worked as
a sander forklift operator; W. Cordova worked as a shuffler
operator; Sanchez worked as a truckdriver; and Coca worked
as a storage operator.
Gallegos, hired on August 1, 1990, as a laborer; John
Montoya, hired on June 25, 1990, as a laborer; Valdez, hired
on October 4, 1990, as a laborer; and Espinoza, hired on No-
vember 7, 1990, as a laborer, were transferred to bander po-
sitions on March 16, 1991, June 25, 1991, August 27, 1991,
and November 5, 1991, respectively.
W. Cordova worked as a bander beginning in July 1989;
Jones worked as a bander beginning in September 1988; and
M. Salazar worked as a bander beginning in August 1986.
All three had earlier plant seniority dates. W. Cordova was
working as a bander at the time he went on strike; the other
two transferred to other jobs after working as banders.
Medite has not offered reinstatement to any of the three at
any time since its receipt of their requests for reinstatement.
Richard Martinez, hired on July 31, 1990, as a laborer,
was transferred to a saw helper position on November 13,
1990, and reassigned to that position on September 20, 1991.
Jones worked as a saw helper beginning in April 1988 and
Montano worked in that classification beginning in May
1990.
Both had earlier plant seniority dates. Montano was work-
ing as a saw helper at the time he went on strike; Jones
transferred to another job after working as a saw helper.
Medite has not offered reinstatement either to Jones or
Montano since its receipt of their requests for reinstatement.
Twenty employees were hired between November 7, 1990,
and May 15, 1992, as laborers.
W. Cordova, Jones, Montano, Mueller, P. Salazar, M.
Salazar, and Sanchez all worked in that classification begin-
ning on various dates in 1984, 1985, 1987, 1988, 1989, and
1990. Mueller was working as a laborer at the time he went
on strike. Since his September 17, 1991, request for rein-
statement, Mueller has not been offered reinstatement by
Medite; nor have the others named have been offered rein-
statement by Medite since receiving their requests therefor.
Richard Duran, hired on June 21, 1990, as a laborer, was
transferred to a utility position on December 11, 1990;
Ignacio Gonzales, hired on July 2, 1990, as a laborer, was
transferred to a utility position on July 31, 1991; Kevin Tru-
jillo, hired on June 29, 1990, as a laborer, was transferred
to a utility position on August 16, 1991; and Joseph Thrush,
hired on December 26, 1990, as a laborer, was transferred
to a utility position on December 18, 1991.
P. Salazar commenced work in the utility position in De-
cember 1989 and held that position at the time he went on
strike. He was hired in October 1987. Medite has not offered
reinstatement to P. Salazar since receiving his request there-
for.
Benito Jaramillo, hired on August 1, 1990, as a laborer,
was transferred to a refiner helper position on March 7,
1991. Joseph Garcia, hired on August 21, 1990, as a laborer,
was transferred to a refiner helper position on June 12, 1991.
P. Salazar commenced work in the refiner helper position
in April 1988, prior to his 1989 transfer to a utility position.
Medite has not offered P. Salazar reinstatement to any posi-
tion since receiving his request therefor.
1155MEDITE OF NEW MEXICO, INC.
5 Seniority dates from the date of employment at the plant (per
Stone’s testimony). Prior employment at the sawmill is not credited.
6 The record establishes a practice whereby employees were auto-
matically transferred into sander operator and shuffler operator posi-
tions but failed to develop whether employees with less seniority
than W. Cordova and Jones were placed in those positions automati-
cally subsequent to Medite’s receipt of their offers to return to work.
7 The picket signs were made from cardboard, utilizing cardboard
boxes secured from local grocery stores. The cardboard signs were
affixed with staples or tape to 1/4 x 1-1/2 inch fibreboard sticks.
8 Although I credit Ortiz’ testimony he saw P. Salazar and Tafoya
among the pickets surrounding his vehicle on the driver’s side and
his testimony the two, among others, struck his vehicle with the
picket signs they carried, I do not find that testimony establishes ei-
ther that Salazar or Tafoya inflicted the alleged scratches in view of
the composition of the signs, Ortiz’ statement (in one of his affida-
vits) scratches were inflicted on another of his vehicles while it was
parked outside his home and Ortiz’ failure to identify where the al-
leged scratches were located (in view of his placement of Salazar
and Tafoya on the driver side of his vehicle and Salazar’s testimony,
which I credit, he did not see any scratches on Ortiz’ vehicle when
he approached the Ortiz vehicle, in the encounter following the pick-
et line incident). Also, while I credit Ortiz’ testimony there were
scratches on both of Ortiz’ vehicles, since Ortiz did not testify he
saw Salazar and Tafoya inflict the scratches nor knew were the
scratches were located, I find the record fails to establish Salazar and
Tafoya or any other picket inflicted the scratches during the picket
line encounter.
William Pena, hired during the strike as a laborer, was
transferred to the position of sander forklift operator on June
6, 1991; Ray Lucero, hired on June 22, 1990, as a laborer,
was transferred to the position of sander forklift operator on
April 1, 1992.
Sanchez commenced work as a sander forklift operator in
November 1984. He has not been offered reinstatement to
any position since filing his reinstatement request with
Medite.
Amos Romero, hired on September 10, 1991, as a laborer
and subsequently transferred to the position of sticker on De-
cember 9, 1991, was transferred to the position of sander
grader on April 14, 1992.
Jones commenced work as a sander grader in August
1989. His plant seniority date predated that assignment.
Medite has not offered Jones reinstatement to any position
since he filed his reinstatement request with Medite.
Edward Gallegos, hired on December 7, 1988, as a la-
borer, was transferred to the position of storage operator on
June 6, 1991.
Coca commenced work as a storage operator in October
1985 and began work at the plant in September of that year.5
Medite has not offered Coca reinstatement to any position
since receiving his reinstatement request.
Since Medite’s receipt of reinstatement requests from
Casias et al., the record fails to reflect the occurrence of any
vacancies in the positions of: saw forklift operator; mill-
wright; oiler; sander operator; and shuffler operator.6
I. The Alleged Strike Misconduct
1. Preliminary
The plant was operated around the clock, requiring the
scheduling of three shifts.
The strikers began to man picket lines outside the plant on
June 11, 1990, and continued to picket until the Union was
decertified in October 1990.
There were railroad tracks alongside the highway employ-
ees traveled on in their vehicles prior to turning onto a drive-
way which crossed the railroad tracks and led to a parking
lot outside the plant. On leaving the plant in their autos and
proceeding across the railroad tracks to the highway, the em-
ployees encountered a stop sign at the highway, entered the
highway and turned either right or left.
The strikers and their supporters parked their vehicles on
both sides of the highway near the driveway and picketed at
the point the highway and the driveway intersected. They
also carried picket signs on both sides of the highway oppo-
site the driveway entrance. After a time, at the request of po-
lice, the strikers and their supporters parked their vehicles
only on the side of the highway opposite the driveway en-
trance. The families of the strikers were often present at the
picket line. The strikers and their families prepared and con-
sumed food and drink in the vicinity of their vehicles. At
night, the strikers chopped wood and maintained a fire within
a barrel near the picket line.
2. Alleged June 13, 1990 Misconduct (P. Salazar
and Tafoya)
At approximately 3:30 p.m. on June 13, 1990, Foreman
Tommy Ortiz left the parking area outside the plant, drove
his jeep across the railroad tracks, and came to a stop short
of the highway because several children were playing in the
driveway.
Several pickets gathered around his vehicle, including P.
Salazar and Tafoya (on the driver side of the vehicle). The
pickets called him a scab, struck his vehicle with the picket
signs they were carrying, and Tafoya asked Ortiz to leave his
vehicle.7 Ortiz made no response and slowly proceeded to
and turned onto the highway.
Ortiz claimed he later discovered 8 to 10 deep scratches
on the vehicle, reported the incident to Plant Manager Miller
(by telephone) and drove to a police station to report the in-
cident.8
After leaving the police station, Ortiz saw P. Salazar drive
by in his vehicle (the pickets were picketing on 4-hour shifts
and Salazar’s shift ended at 4 p.m.). Ortiz began to follow
Salazar. When Salazar noticed the jeep following him
through several turns, he pulled to the side of the road to see
if the jeep would pass. Ortiz did not pass, but pulled up be-
hind Salazar’s vehicle. Salazar left his vehicle and asked
Ortiz why he was following him. Ortiz accused Salazar of
being responsible for damage to his jeep. Salazar denied the
charge. Ortiz insisted Salazar was responsible and said he
and his brothers would get him later. Salazar replied why
wait, I’m here now. Ortiz drove away without responding.
On June 28, 1990, Ortiz executed an affidavit describing
the picket line incident. He did not mention the later encoun-
ter with Salazar in the affidavit. Medite utilized the affidavit
in seeking and securing an injunction order from a state
court.
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 On June 21, 1990, Medite filed a charge in Case 28–CB–3311
alleging, inter alia, by the alleged conduct of Tafoya and Salazar at
the picket line the union violated Sec. 8(b)(1)(A) of the Act, making
no mention of the later Salazar encounter. The statement was se-
cured during the Region’s investigation of the charge. A complaint
based on the charge issued on August 6, 1990. Following the
Union’s October 1990 decertification, a settlement was reached
which, inter alia, contained a nonadmission provision.
10 Tafoya was a strike leader. He testified he did not strike
Mascarenas and Mascarenas confirmed his testimony.
11 L. Cordova’s testimony the coolers contained cokes for the chil-
dren present was uncontradicted and is credited.
12 Dominguez claimed Tafoya was also in the vehicle. Tafoya de-
nied he was in the auto. I credit the denial; Tafoya was a convincing
witness.
13 Coca denied he had a video camera. In any event, Griego did
not testify Coca made any use of the camera.
On July 11, 1990, Ortiz executed a statement before an
agent of Region 28 again describing the picket line incident
and making no mention of the later encounter with Salazar.9
3. Alleged June 20, 1990 misconduct (Coca, Montoya,
and Tafoya)
On June 20, 1990, Maintenance Superintendent Joe Alex-
ander and electrician Joseph Mascarenas worked overtime,
leaving the plant about 7:30 p.m. Alexander and Mascarenas
left the parking area in separate vehicles, Mascarenas lead-
ing. After Mascarenas left the driveway and turned onto the
highway, with Alexander behind him, strikers lining both
sides of the highway who were milling about engaged in
their customary practice of shouting scab and other deroga-
tory comments at the occupants of the vehicles. Mascarenas,
a 6-footer, responded by alighting from his vehicle (he was
driving, with his brother as a passenger) and came face-to-
face with Coca. Another striker, Michael Leyba, was along-
side Mascarenas. Coca said bring it on (epithet) and
Mascarenas struck Coca, knocking him down, with Coca, a
much smaller man, kicking Mascarenas on his way down.
About the same time, Leyba struck Mascarenas from the
side, injuring his eye. Other strikers mixed in, striking
Mascarenas, including Montoya. Alexander hurried forward
when he saw what was happening; he and some of the strik-
ers separated the combatants and escorted Mascarenas back
to his vehicle, exhorting Mascarenas to leave the area, which
he did, Alexander following. At the time Mascarenas left his
vehicle and the strikers gathered around him, Tafoya was on
the opposite side of the street grilling hamburgers and hot-
dogs in front of a parked vehicle. He reached a point behind
Coca as blows were exchanged and told the strikers to cut
it out, they didn’t need this.10
Mascarenas initially testified ‘‘everybody’’ had beers but
later modified his testimony to state Coca and Leyba had
beers in their hands, which they threw away, and that he saw
two coolers alongside the road, though conceding he did not
know what they contained.11
The following day (June 21, 1990), as Mascarenas left the
plant in the same vehicle (with someone else driving), the
vehicle again stopped as it proceeded down the highway after
leaving the plant driveway and Mascarenas again began to
leave the vehicle as the pickets yelled scab and other epi-
thets. A policeman at the scene, however, ordered
Mascarenas to stay in his vehicle and proceed. The vehicle
then proceeded down the highway.
Mascarenas and Alexander furnished affidavits to Medite
on June 28, 1990, reciting their versions of what transpired
on June 20, 1990. The affidavits were utilized by Medite to
secure a state court injunction. On July 11, 1990, Mascarenas
gave a statement to an agent of Region 28 in the course of
the Region’s investigation of Medite’s June 20, 1990 charge
discussed above.
4. Alleged July 10, 1990 misconduct (Montoya)
Mark Dominguez was hired by Medite as a laborer during
the strike. On July 10, 1990, he was assigned to the night
shift and about 11:30 p.m. was approaching the plant drive-
way in his auto. He saw Montoya on the side of the highway
near the driveway as he slowed to turn into the driveway,
carrying an ax. As he approached the place Montoya was
standing, Montoya swung the ax up and stated ‘‘I’ll kill
you’’ while stepping onto the highway. Dominguez swerved
his vehicle to the left, avoiding Montoya, turned onto the
driveway and entered the plant parking area.
On July 11, 1990, Dominguez gave a written statement to
an agent of Region 28 relating the ax incident during Region
28’s investigation of Medite’s June 20, 1990 charge de-
scribed heretofore.
5. Alleged July 11, 1990 misconduct (Montoya, Coca,
and Tafoya)
The next day Dominguez was driving his auto down
Grand Avenue in Las Vegas. An auto driven by Montoya
pulled up alongside his auto. Coca occupied the passenger
seat.12 The two called Dominguez a scab. Montoya told
Dominguez to pull over and said we will get you later when
Dominguez drove on.
6. Alleged July 11, 1990 misconduct (Montoya
and Coca)
Shipping foreman Mike Griego’s wife came to the plant
on or about July 11, 1990, to pick up Griego. Griego took
the wheel and left the plant premises. An auto driven by
Montoya, with Coca in the passenger seat, drove alongside
his car on the left. Both Griego’s and Coca’s car windows
were rolled down. Coca had a video camera in his posses-
sion.13 Coca called Griego a scab and addressed several epi-
thets towards him. Montoya did not speak. Griego told his
wife to ignore the two, to turn on the radio. The two autos
then went their separate ways.
7. Alleged M. Salazar misconduct during the strike
Margaret Espinosa was a longtime employee of Medite.
She cleaned Medite’s offices, worked a 4 p.m. to midnight
shift and worked that shift throughout the strike period (June
to October 1990). On approximately five occasions, when
she entered the plant driveway in her auto prior to starting
work, M. Salazar was manning the picket line and shouted
obscenities at her. She reported to Miller that M. Salazar
shouted ‘‘bad words’’ to her on the five occasions but did
not recite what M. Salazar said to her.
Approximately a week before the hearing in this case,
Espinosa learned the hearing had been scheduled, contacted
Stone, and volunteered to testify against M. Salazar. Stone
1157MEDITE OF NEW MEXICO, INC.
14 Stone testified Miller maintained files on the strikers in his of-
fice and those files disappeared when Miller’s employment was in-
voluntarily terminated in July 1991.
testified Miller informed him of the five Espinosa reports
after each report was made but that he was unaware of
whether any written record of the reports was made14 and
that no written statement from Espinosa was sought and se-
cured until she volunteered to testify.
Her oral reports to Miller were not utilized to support ei-
ther Medite’s injunction action or Medite’s unfair labor prac-
tice charges versus the Union.
Shipping Foreman Mike Griego testified his wife tele-
phoned him at the plant about a month after the strike started
and requested he pick up some groceries on his way home.
He testified he encountered M. Salazar at the store, Salazar
attempted to stop him as he was walking back to his auto
from the store, addressed a curse at him as he kept going,
pushed him, and asked him to get out of his auto after he
entered it, saying he wanted to get even with Griego.
Salazar confirmed an encounter with Griego at the store,
but testified the encounter took place after the strike ended
and picketing ceased. Salazar testified prior to going on
strike and while he was working as a bander, he made errors
in writing up several tickets; Griego caught the errors when
the products reached the shipping department and brought
them to Salazar’s attention; Salazar made up new and correct
tickets and was about to replace the faulty tickets with the
correct ones and destroy the faulty tickets when Griego sug-
gested he take the correct tickets, replace the faulty tickets
with the correct ones and destroy the faulty tickets. Salazar
acceded, only to learn later Griego turned over the faulty
tickets to Salazar’s foreman, who used the faulty tickets as
the basis for removing Salazar from the bander position and
demoting him to a laborer position. Salazar stated the store
encounter gave him an opportunity to upbraid Griego over
his ratting on him with respect to the tickets; and that he in-
vited Griego to get out of his car only after Griego ignored
him and, after reaching his auto, locking the door, rolling
down the window partway, stated Salazar and his fellow
strikers were ‘‘assholes’’ for going on strike and losing their
jobs and he was the better man because he was still working,
at which point he invited Griego to leave his auto and he
would introduce him to an ‘‘asshole’’; whereupon Griego
exited the parking lot. Salazar denied he pushed Griego at
any time.
Salazar impressed me as a much more forthright and reli-
able witness than Griego, whose testimony was hesitant and
halting. I credit Salazar’s testimony and find the encounter
occurred in the manner and for the reason stated by Salazar.
Stone testified Griego in either June or July 1990 told him
Salazar followed him out of a grocery store, tried to coerce
him to fight and pushed him, but he refused to fight and
went home. He testified ‘‘the personnel department,’’ not he,
considered and decided not to reinstate M. Salazar when the
March 1991 vacancy occurred in the binder position because
of the Espinosa complaints and the Griego report. Stone fur-
ther testified he did not have Griego prepare a written state-
ment concerning the encounter until shortly before the hear-
ing.
Griego’s alleged oral reports to Stone were not utilized by
Medite either to support its injunction action or unfair labor
practice charges and M. Salazar’s personnel file is devoid of
any mention of the Espinosa complaints or the Griego report.
Noone from Medite’s personnel department supported
Stone’s claim he or she considered and decided not to rein-
state M. Salazar in March 1991 because of the Espinosa
complaints and the Griego report.
J. Analysis and Conclusions
1. The 10(b) defense
Section 10(b) of the Act bars the Board from considering
and deciding on their merits issues raised by unfair labor
practice charges filed more than 6 months subsequent to con-
duct allegedly violative of the Act.
Medite contends the 12 Charging Parties’ charges were
filed more than 6 months after they had actual or construc-
tive notice of vacancies in jobs they held prior to going on
strike or jobs substantially equivalent to jobs they held prior
to going on strike, contending because of such alleged no-
tice, the 12 should be denied any relief under the Act.
P. Salazar’s charge was filed on August 13, 1991, 11 days
after Stone informed Salazar that Medite’s July 30, 1991 no-
tice to him of a job opening he might be considered for was
cancelled on the basis of statements submitted to the Region
in support of Medite’s unfair labor practice charges against
the Union stating Salazar engaged in alleged strike mis-
conduct.
Mueller’s charge was filed on January 14, 1992, approxi-
mately 4 months after he requested reinstatement following
his September 3, 1991 receipt of information a job had
opened which he might be considered for but had been filled
by someone else.
Casias, Coca, L. Cordova, W. Cordova, Jones, Montano,
M. Salazar, Sanchez, and Tafoya filed their charges on the
same date Mueller filed his charge, i.e., on January 14, 1992.
Montoya filed his charge on January 27, 1992.
There is no evidence Casias, Coca, L. Cordova, W. Cor-
dova, Jones, Montano, Montoya. M. Salazar, Sanchez, or
Tafoya had clear and unequivocal actual or constructive no-
tice Medite hired or transferred employees with less plant
and job seniority than they to jobs they held prior to striking
or jobs substantially equivalent to jobs they held prior to
striking and it is clear both P. Salazar and Mueller filed their
charges within 6 months after learning jobs they were quali-
fied to perform were available.
To the contrary, the evidence discloses Medite barred ex-
strikers from the plant area following the end of the strike;
Stone informed Mueller employees who did not go on strike
and the striker replacements were hostile towards the ex-
strikers, both Salazars testified they were not communicating
with the persons who replaced them or failed to join the
strike and it is reasonable to conclude there was a similar
lack of communication between the rest of the Charging Par-
ties and the employees who replaced them or failed to join
the strike.
These facts fall short of meeting Medite’s burden of proof
to show the 12 ex-strikers had actual or constructive clear
and unequivocal notice that, subsequent to their requests for
reinstatement following the end of the strike, Medite hired
and/or transferred employees with less job and plant seniority
to their former jobs or jobs substantially equivalent to jobs
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Great Lakes Chemical Corp., 298 NLRB 615 (1990); Crown
Cork & Seal Co., 255 NLRB 14 (1981), enfd. 69l F.2d 506 (9th Cir.
1982).
16 Great Lakes Chemical Corp., supra; Crown Cork & Seal Co.,
supra.
17 Evidence established posted jobs had been awarded to a bidder
who had a higher paying and higher skilled position at the time he
successfully bid for a lower paying and lower skilled job.
18 Noting plant seniority was accorded prime consideration in job
awards to competing bidders and Casias’ seniority dating from 1984.
they formerly performed.15 In the absence of such proof, I
reject Medite’s contention the 12 Charging Parties are not
entitled to such relief under the Act as may appear warranted
on the basis of the evidence produced during the hearing
concerning the merits of their charges.16
2. Alleged failures to offer to return to work
Medite denied in its answer to the complaint the 12 Charg-
ing Parties tendered unconditional offers to return to work
following the end of the strike. In Medite’s posthearing brief,
however, Medite limits the contention to the position neither
Coca nor Mueller tendered an unconditional offer to return
to work following the end of the strike.
That contention is rejected.
Coca tendered an offer identical to offers tendered by
Casias, L. Cordova, W. Cordova, M. Salazar, P. Salazar, and
Tafoya on November 14, 1990, and on November 19, 1990,
Miller sent identical letters to Casias, Coca, L. Cordova, W.
Cordova, M. Salazar, P. Salazar, and Tafoya informing them
a replacement had been hired in their jobs and no job was
available for them. Coca’s offer and Miller’s response are in
the record (G.C. Exhs. 17 and 17a).
On September 17, 1991, Mueller tendered an offer to re-
turn to work (G.C. Exh. 60).
On November 14, 1990, as noted above, Casias, L. Cor-
dova, W. Cordova, M. Salazar, P. Salazar, and Tafoya ten-
dered offers to return to work in language identical to the
Coca offer the same date. In November 1990 Sanchez orally
offered to return to work and Miller acknowledged receipt of
the request with a reply stating Sanchez had been replaced
and there was no job available for him. On December 4,
1990, Montano offered to return to work in language iden-
tical to the Casias et al. offers. On December 19, 1990, Mon-
toya offered to return to work in language identical to the
Casias et al. offers and Miller responded to the Montano and
Montoya offers in the same manner he responded to the of-
fers by Casias et al. All the offers were unconditional. I
therefore reject Medite’s contention any of the 12 failed to
unconditionally offer to return to work following the end of
the strike.
3. Alleged reinstatement offers
In its answer to the complaint, Medite denied it failed to
offer reinstatement to the 12 Charging Parties. Neither the
letter addressed to P. Salazar nor the letter addressed to
Mueller by Medite constituted a reinstatement offer; at best,
they were inquiries designed to learn if the two were avail-
able and interested in returning to work.
I therefore find and conclude Medite did not, as alleged
in the complaint, offer reinstatement to any of the 12 Charg-
ing Parties subsequent to its receipt of their unconditional of-
fers to return to work following the end of the strike.
4. Job vacancies Medite allegedly should have offered
the Charging Parties following its receipt of their
offers to return to work
a. Feliverto Casias
Casias was hired as an oiler in the maintenance department
in March 1984 and was continuously employed in that posi-
tion until he went on strike on June 11, 1990. On November
14, 1990, Casias tendered an unconditional offer to return to
work to Medite.
It is undisputed at all material times Medite employed a
single oiler in the maintenance department, that an employee
was hired to replace Casias in that position during the strike,
and that the replacement has continuously occupied that posi-
tion since his hire.
Counsel for the General Counsel and Casias allege Casias
completed a mechanical training course prior to going on
strike, a position of mechanic IV was filled by bid on March
9, 1992, and contend that position was substantially equiva-
lent to the oiler position and should have been offered to
Casias. Alternatively, counsel for the General Counsel and
for Casias allege since the bid procedures permitted employ-
ees to bid for any posted job vacancy, whether higher or
lower paying,17 Casias should have been offered the oppor-
tunity to bid on any jobs which were posted as vacant posi-
tions and which he believed he could perform and wished to
bid for, citing MCC Pacific Valves, 244 NLRB 931 (1979).18
Counsel for Medite alleges its obligation to offer a job to
an ex-striker only requires Medite to offer an ex-striker rein-
statement to his former job or to a substantially equivalent
job if such a job becomes available after Medite has received
the ex-striker’s unconditional offer to return to work. I find
merit in Medite’s position.
NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967);
NLRB v. Great Dane Trailers, 386 U.S. 26 (1967), and
Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99
(7th Cir. 1969), cert. denied 397 U.S. 920 (1970), established
the doctrine that, following the end of a strike and an em-
ployer’s receipt of an unconditional offer to return to work,
inasmuch as the ex-striker retains employee status, he is enti-
tled to nondiscriminatory treatment, i.e., the same oppor-
tunity as other employees to fill job vacancies which occur
after the employer has received his offer to return to work.
The Board has subsequently ruled, however, an employer
failure or refusal to reinstate the ex-striker to any job va-
cancy which occurs subsequent to the employer’s receipt of
the offer to return to work in a job the ex-striker is capable
of performing does not constitute discriminatory treatment of
the ex-striker; that the employer is only required to offer re-
instatement to a vacancy in the job the ex-striker held prior
to striking or a vacancy in a job which was substantially
equivalent to that job, specifically rejecting the conclusion of
Administrative Law Judge Robert Gritta that the employer in
question was required to reinstate several ex-strikers to job
vacancies in jobs the ex-strikers held and/or were capable of
1159MEDITE OF NEW MEXICO, INC.
19 Rose Printing Co., 304 NLRB 132 (1991).
20 Unless, as noted above, an employee with less seniority was
automatically progressed to that position since Medite’s receipt of
his offer to return to work.
performing prior to the job they were performing when they
went on strike.19
With respect to the MCC Pacific case cited by counsel for
the General Counsel and for Casias, their reliance on this
case as authority for a proposition Casias should have been
offered an opportunity to bid on any job he was qualified to
perform is misplaced. In the MCC Pacific case, vacancies in
jobs ex-strikers held at the time they went on strike were
filled by replacements, following the employer’s receipt of
the ex-strikers’ offers to return to work. The case does not
stand for a principle ex-strikers are entitled to fill job vacan-
cies in jobs other than the jobs they held when they went on
strike or substantially equivalent jobs following the employ-
er’s receipt of unconditional offers to return to work.
Thus, while vacancies in unskilled or semiskilled jobs
Casias was capable of performing (such as laborer, sticker
etc.) occurred subsequent to Medite’s receipt of Casias’ offer
to return to work, and while one might reason his long and
satisfactory service for Medite should have entitled Coca to
consideration for filling such vacancies had he been on layoff
rather than on strike, the Rose Printing decision compels a
contrary conclusion.
With respect to their former contention, I find and con-
clude the mechanic IV position was not substantially equiva-
lent to an oiler position, since the mechanic IV position re-
quired the exercise of completely different skills than those
of an oiler. The fact Casias took courses to qualify himself
for such a position is irrelevant.
I therefore conclude counsel for the General Counsel and
for Casias failed to establish any vacancy occurred in the
Medite work force either in the job Casias held prior to the
strike or any substantially equivalent job subsequent to
Medite’s receipt of Casias’ offer to return to work.
b. Benny Coca
At the time Coca went on strike he was working as a class
3 millwright. He was continuously employed in that classi-
fication from February 1988. He previously worked as a stor-
age operator (between October 1985 and February 1988).
Coca tendered his unconditional offer to return to work to
Medite on November 14, 1990. No vacancies in the mill-
wright position have occurred since Medite’s receipt of
Coca’s offer.
Counsel for the General Counsel and for Coca point out
a storage operator position was awarded to a plant employee
on June 6, 1991, and contend Coca should have been offered
that job.
I reject that contention. As noted above, while one might
reason Coca’s long and satisfactory performance as a storage
operator should have entitled him to greater consideration
than the employee who was awarded the storage operator po-
sition on June 6, 1991, under Rose Printing Medite’s obliga-
tion was limited to offering Coca reinstatement subsequent to
its receipt of his offer to return to work only to a vacancy
in the job Coca held when he went on strike or a substan-
tially equivalent job. No vacancies have occurred in the mill-
wright classification since Medite’s receipt of Coca’s offer
and the storage operator job is not substantially equivalent to
his millwright job.
I therefore find and conclude counsel for the General
Counsel and for Coca failed to establish any vacancy has oc-
curred in the job Coca held or in a substantially equivalent
job since Medite received Coca’s offer to return to work.
c. Leroy Cordova
From September 1984 to the date he went on strike, Leroy
Cordova was employed at the plant as a millwright.
He tendered his unconditional offer to return to work to
Medite on November 14, 1990.
No vacancies have occurred in the millwright classification
since Medite’s receipt of his offer.
I therefore find and conclude counsel for the General
Counsel and for Cordova failed to establish any vacancy has
occurred in the job Cordova held or in a substantially equiva-
lent job since Medite received Cordova’s offer to return to
work.
d. William Cordova
Between March 1990 and the date he went on strike, Wil-
liam Cordova was employed at the plant as a shuffler oper-
ator. Between July 1989 and March 1990 he was employed
as a bander; previously, as a laborer, forklift operator, and
utility trainee. He was initially employed at the plant in Sep-
tember 1985.
William Cordova tendered his unconditional offer to return
to work to Medite on November 14, 1990.
No vacancies have occurred in the shuffler operator posi-
tion since Medite’s receipt of Cordova’s offer to return to
work.20
Counsel for the General Counsel and for Cordova contend
vacancies have arisen in the bander and forklift operator po-
sitions since Medite’s receipt of Cordova’s offer to return to
work, that those positions are substantially equivalent to the
shuffler operator position and should have been offered to
Cordova.
At times material, the rate of pay for the shuffler operator
position was $8.09; for bander, $7.73 and for forklift oper-
ator, $7.62. The former position required operation of a ma-
chine through computer controls; the latter two jobs did not,
and involved completely different job functions. I therefore
reject the contention the latter two jobs were substantially
equivalent to the shuffler operator position.
On the basis of the foregoing, I find and conclude counsel
for the General Counsel and for Cordova failed to establish
any vacancy occurred in the job Cordova held prior to strik-
ing or in any job which was substantially equivalent to the
job Cordova held prior to striking.
e. Homer Jones
In May 1990, a month before he went on strike, Jones was
promoted to the position of sander operator; previously
(since August 1989), he was a sander grader. Prior to that
(between September 1988 and August 1989), he was also a
sander operator (apparently demoted in an economic cut-
back). His previous jobs were bander, saw helper, environ-
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Unless, as noted above, an employee with less seniority had
been automatically progressed to that position since Medite’s receipt
of Jones’ offer to return to work.
mental (outside laborer), saw helper and temporary saw help-
er. His original date of hire was in March 1988.
Jones tendered his offer to return to work to Medite on
December 3, 1990.
No vacancies have occurred in the sander operator position
since Medite’s receipt of Jones’ offer to return to work.21
Counsel for Jones contends a sander grader position,
which was filled on April 14, 1992, should have been offered
to Jones.
I reject that contention; the sander grader position is not
substantially equivalent to the sander operator position, but
is an inspector position, i.e., the inspection of the panels after
the sander operator has completed the sanding operation.
I therefore find and conclude counsel for the General
Counsel and for Jones failed to establish any vacancy has oc-
curred in the classification of sander operator or a substan-
tially equivalent position since Jones tendered his offer to re-
turn to work.
f. Pete Montano
Between May 22, 1990, and the date he went on strike,
Montano was employed as a cutoff saw helper. From the
date he was hired, September 1, 1989 to May 22, 1990, he
was employed in the environmental classification (outside la-
borer).
Montano tendered his unconditional offer to return to work
to Medite on December 4, 1990.
Richard Martinez was hired as a laborer during the strike;
promoted to the position of cutoff saw helper on November
13, 1990; subsequently demoted to the position of laborer;
and again promoted to the position of cutoff saw helper on
September 20, 1991.
Montano was not offered the September 20, 1991 vacancy.
Stone testified Medite was currently operating with only
one saw crew rather than the four crews it maintained earlier
and currently only required one saw helper. That situation
fails to address the question of whether vacancies in the saw
helper position occurred following Medite’s receipt of
Montano’s unconditional offer to return to work to which
Montano should have been recalled for such period as the
employee awarded that position occupied the position and
whether his seniority entitled his retention in that position in
any further reductions in the number of saw helpers.
I therefore find and conclude Medite failed to offer
Montano a vacancy which occurred in the position he held
when he went on strike, subsequent to Medite’s receipt of
Montano’s unconditional offer to return to work, filling it in-
stead with a person hired as a laborer during the strike.
g. George Montoya
George Montoya was hired as a millwright on March 13,
1984, and worked in that classification until he went on
strike.
Montoya tendered an unconditional offer to return to work
to Medite on December 19, 1990.
There have not been any vacancies in the millwright clas-
sification since Montoya tendered his offer.
I find and conclude counsel for the General Counsel and
for Montoya failed to establish any vacancies have occurred
in the position Nontoya held since Montoya tendered his
offer.
h. Karl Mueller
Mueller was hired as a laborer in March 1990 and re-
mained in that position until he went on strike.
On September 17, 1991, Mueller tendered an uncondi-
tional offer to return to work to Medite.
On November 8, 1991; December 9, 1991; February 25,
1992; March 27, 1992; and April 15, 1992, Medite hired six
laborers as new hires. Mueller was not offered any of those
jobs.
I find and conclude the foregoing establishes Medite failed
to offer to reinstate Mueller to six vacancies in the position
Mueller held prior to the strike, following its receipt of his
unconditional offer to return to work, filling the vacancies in
question with six new hires.
i. Manuel Sanchez
At the time he went on strike, Sanchez was a millwright.
He became a millwright in May 1990, after previous service
as a millwright leadman. Between November 1989 and Feb-
ruary 1990, when he became a leadman, he was a millwright
3. Prior to that, he was a laborer, a utility employee, a fork-
lift operator, a truckdriver, and an environmental employee
(outside laborer). His initial date of hire was in July 1984.
Sanchez orally tendered an unconditional offer to return to
work in November 1990 and was advised (in writing, by
Miller) he had been replaced and no job was available in the
millwright classification.
No vacancies have occurred in the millwright classification
since Medite received Sanchez’ offer to return to work.
Counsel for the General Counsel and for Sanchez maintain
there have been vacancies in the utility, forklift operator and
truckdriver positions since Medite’s receipt of Sanchez’ offer
to return to work which should have been offered to
Sanchez.
None of those positions, however, are substantially equiva-
lent to the millwright position Sanchez held at the time he
went on strike.
I therefore find and conclude counsel for the General
Counsel and for Sanchez failed to establish a vacancy in the
position Sanchez held at the time he went on strike or in a
substantially equivalent position occurred subsequent to
Medite’s receipt of Sanchez’ unconditional offer to return to
work.
j. Max Salazar
Max Salazar was hired as a laborer in September 1985; he
was subsequently promoted to a bander position; demoted to
a laborer position and again promoted to a bander position,
the position he held at the time he went on strike.
Salazar tendered an unconditional offer to return to work
to Medite on November 14, 1990.
On March 16, 1991; June 25, 1991; August 29, 1991; and
November 5, 1991, four persons hired as laborers during the
strike were promoted to the position of bander.
Salazar was not offered any of the bander vacancies filled
by the four on the dates just noted.
1161MEDITE OF NEW MEXICO, INC.
22 NLRB v. Fleetwood Trailer Co., supra; NLRB v. Great Dane
Trailers, supra; Laidlaw Corp., supra; Rose Printing Co., supra; also
see Oregon Steel Mills, 291 NLRB 185 (1988), and MCC Pacific
Valves, supra.
I therefore find and conclude Medite failed to offer to re-
instate Salazar to four vacancies in the position he held prior
to going on strike following his unconditional offer to return
to work, but filled those vacancies with four persons hired
as laborers during the strike.
k. Perry Salazar
Perry Salazar was hired as a laborer on October 9, 1987.
He subsequently progressed to positions as refiner helper,
saw operator and lastly utility employee, the position he held
from December 1989 to the date he went on strike.
Salazar tendered an unconditional offer to return to work
to Medite on November 14, 1990.
Four persons hired as laborers during the strike were pro-
moted to the position of utility employee on December 11,
1990; July 31, 1991; August 16, 1991; and December 18,
1991.
I therefore find and conclude Medite failed to place
Salazar in a December 11, 1990 vacancy in the position he
held prior to going on strike, despite its earlier receipt of his
unconditional offer to return to work, employee status and
both job and plant seniority as well as satisfactory perform-
ance in that position, filling the vacancy instead with a junior
employee with no prior experience in the position.
l. Arturo Tafoya
Medite hired Arturo Tafoya as a laborer on May 1, 1984.
On August 14, 1984, he was promoted to the position of saw
forklift operator and remained in that position until he went
on strike.
On November 14, 1990, he tendered an unconditional
offer to return to work to Medite.
On June 6, 1991, and on April 1, 1992, two employees
hired as laborers during the strike were promoted to the posi-
tion of sander forklift operator. Ex-striker/employee Paul
Garcia, the Charging Party in Case 16–CA–1128l1–5, which
was settled during the hearing, received an inquiry from
Medite with respect to his availability to fill the latter va-
cancy (his last position prior to going to strike was as a
sander forklift operator) and responded affirmatively, but the
vacancy was nevertheless awarded to a laborer hired during
the strike with less plant seniority and no job seniority in the
vacant position.
The forklift used by a saw forklift operator is smaller and
its operator handles smaller panels than the forklift operated
by the sander forklift operator. I nevertheless find and con-
clude the controls and operation of the two forklifts is sub-
stantially equivalent and note the sander forklift operator
services the in-line saw as well as the sander (Stone so testi-
fied).
I therefore find and conclude subsequent to Medite’s re-
ceipt of Tafoya’s unconditional offer to return to work,
Medite failed to place Tafoya in two vacancies in a substan-
tially equivalent position to the position he held when he
went on strike despite his employee status and superior se-
niority and work experience status over the two junior em-
ployees awarded the two vacancies.
5. Alleged violations of the Act
I have entered findings and conclusions that, following its
receipt of unconditional offers to return to work from
Montano, Mueller, M. Salazar, P. Salazar, and Tafoya after
the strike ended, Medite filled subsequent job vacancies with
new hires or transferees hired during the strike and failed to
recall Montano, Mueller, M. Salazar, P. Salazar, and Tafoya
to those job vacancies, despite the fact they retained em-
ployee status, were senior to the persons placed in those jobs,
and the jobs in question either were jobs they held at the
time they went on strike or substantially equivalent thereto.
I therefore conclude Medite violated Section 8(a)(1) and
(3) of the Act by failing to reinstate Montano and Mueller
to vacancies they normally, in view of their employee status,
seniority and qualifications therefor, would and should have
been placed in, rather than the junior employees placed
therein.22
With respect to M. Salazar, P. Salazar, and Tafoya, the
question of whether Medite failed or refused to recall the
three to fill vacancies in their last or a substantially equiva-
lent position because of an honest belief they engaged in se-
rious misconduct during the strike shall be determined below.
I have entered findings and conclusions. Counsel for the
General Counsel and for the Charging Parties failed to estab-
lish vacancies in the positions Casias, Coca, L. Cordova, W.
Cordova, Jones, Montoya, and Sanchez held at the time they
went on strike or in substantially equivalent positions oc-
curred following Medite’s receipt of their unconditional of-
fers to return to work.
I therefore conclude Medite did not violate the Act by fail-
ing or refusing to recall Casias, Coca, L. Cordova, W. Cor-
dova, Jones, Montoya, and Sanchez, following its receipt of
their unconditional offers to return to work.
6. The alleged disqualification of M. Salazar, P.
Salazar, and Tafoya for reinstatement
Medite alleges it did not recall M. Salazar and P. Salazar
to fill vacancies in the positions they last held (or a substan-
tially equivalent position, in Tafoya’s case) because at the
time the vacancies occurred, it held an honest belief the three
engaged in serious misconduct during the strike and therefore
it did not violate the Act by failing or refusing to recall the
three to fill those positions.
Medite also contends W. Cordova tendered a written res-
ignation to it, contending it therefore did not violate the Act
by failing or refusing to reinstate him.
In addition, Medite contends it did not violate the Act vis-
a-vis Coca and Mueller on the ground Coca and Mueller did
not file unconditional offers to return to work to Medite fol-
lowing the end of the strike and that it did not violate the
Act with respect to unnamed charging parties because they
secured equivalent employment and abandoned reinstatement.
I have entered findings Coca and Mueller tendered to
Medite unconditional offers to return to work following the
end of the strike and therefore reject that defense.
Medite neither established by valid evidence any of the
Charging Parties secured equivalent employment and aban-
doned reinstatement nor advanced argument supporting that
contention. That defense is likewise rejected.
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Clear Pine Mouldings, 268 NLRB 1044 (1984), affd. 765 F.2d
148 (9th Cir. 1985), cert. denied 474 U.S. 1105 (1986).
24 Stone so testified.
25 Georgia Kraft Co., 258 NLRB 908 (1981), affd. 696 F.2d 931
(11th Cir. 1983)
It is unnecessary to determine whether W. Cordova ten-
dered a written resignation nor its effect, inasmuch as I have
entered findings and conclusions Medite did not violate the
Act by failing to place W. Cordova in any vacant position
following its receipt of his unconditional offer to return to
work, since no vacancies occurred in his last or a substan-
tially equivalent position following Medite’s receipt of his
offer.
It is also unnecessary to determine whether Medite vio-
lated the Act by failing to place Coca and Montoya in vacan-
cies which occurred after its receipt of their unconditional of-
fers to return to work because Medite had an honest belief
Coca and Montoya engaged in misconduct during the strike,
inasmuch as I have entered findings and conclusions Medite
did not violate the Act by failing to place Coca and Montoya
in any vacant position, since no vacancies occurred in their
last or a substantially equivalent position following Medite’s
receipt of their offers.
The remaining question is whether Medite did not recall
M. Salazar and P. Salazar to fill vacancies in the last posi-
tions they held prior to striking when vacancies occurred in
those positions following Medite’s receipt of their offers to
return to work because at the time those vacancies occurred
it had an honest belief the two Salazars engaged in serious
misconduct during the strike. A similar question is whether
Medite did not recall Tafoya to fill a vacancy in a position
which was substantially equivalent to the last position he
held prior to striking because at the time that vacancy arose
it held a similar belief.
In 1984 the Board adopted the rule an employer does not
violate the Act by refraining from recalling an ex-
striker/employee to fill a vacancy in a position he held when
he went on strike or a position substantially equivalent there-
to when the employer honestly believes at the time the va-
cancy occurred that employee engaged in serious misconduct
during the strike which reasonably tended to coerce or in-
timidate other employees’ exercise of their rights under Sec-
tion 7 of the Act, including their right to refrain from sup-
porting the strikers during the strike.23
Only after the employer establishes he refrained from such
recall at the time such a vacancy occurred (and following its
receipt of the ex-striker/employer’s unconditional offer to re-
turn to work) because of such belief is it incumbent upon
counsel for the General Counsel and counsel for the ex-
striker/employee’s to prove the ex-striker/employee was nev-
ertheless entitled to fill the vacancy because the ex-
striker/employee did not engage in the believed misconduct.
Whether Medite did not violate the Act by refraining from
recalling M. Salazar, P. Salazar, and Tafoya when vacancies
in the positions they held when they went on strike (or a
substantially equivalent position, in Tafoya’s case) after
Medite’s receipt of their unconditional offers to return to
work because Medite honestly believed the three engaged in
such misconduct shall be determined below.
a. M. Salazar
Max Salazar was a bander when he went on strike, in June
1990. He tendered an unconditional offer to return to work
to Medite on November 14, 1990.
The Miller response to his offer made no mention of any
rejection of his offer based on any believed strike mis-
conduct.
The Espinosa complaints over Salazar’s use of ‘‘bad
words’’ in addressing her while she crossed the picket line
during the strike and his alleged confrontation with foreman
Griego during the strike were neither reduced to writing nor
utilized in seeking and securing a court injunction during the
strike nor to support Medite’s unfair labor practice charges
against the Union.
Vacancies in the bander position occurred on March 15,
June 25, August 29 and November 11, 1991. M. Salazar was
not placed in any of those vacancies.
Stone testified ‘‘the personnel department,’’ not he person-
ally, decided not to reinstate M. Salazar to the March 25,
1991 vacancy because of the Espinosa complaints and the
Griego incident. M. Salazar’s personnel file, however, con-
tained no reference to either the complaints or the Griego in-
cident and Noone from the personnel department testified he
or she decided not to reinstate M. Salazar to the March 25,
1991 vacancy because of an ‘‘honest belief’’ Salazar en-
gaged in those activities during the strike.
On the basis of the foregoing, I conclude Medite failed to
establish it refrained from recalling M. Salazar, an employee
with greater plant seniority, job seniority, and demonstrated
ability to perform the duties of the vacant position, to fill the
March 25, 1991 vacancy in the binder position because of
an honest belief Salazar engaged in serious misconduct dur-
ing the strike.
I further conclude, in any event, the Espinosa complaints
and the Griego encounter do not support a conclusion Medite
did not violate the Act by failing to recall M. Salazar to the
first vacancy in the binder position which occurred following
Medite’s receipt of his unconditional offer to return to work.
Profanity was common among the work force,24 I credit
M. Salazar’s testimony he did not push Griego, the
Griego/Salazar encounter did not take place in or around the
picket line, it did not interfere with or coerce Griego’s exer-
cise of any Section 7 right, it was not an attempt to prevent
Griego from working at the plant, and M. Salazar was rea-
sonably provoked by Griego’s derogatory remarks when he
invited Griego to step out of his vehicle and meet an
‘‘asshole.’’
Under Clear Pine Moulding, only conduct which reason-
ably tends to coerce or intimidate employee exercise of rights
protected by the Act warrants denying reinstatement to an
ex-striker.
Salazar’s conduct vis-a-vis Espinosa and Griego fails to
meet that test. Crude and obscene remarks to a female em-
ployee by a striker while the employee crossed the picket
line, unaccompanied by any physical threats, is insufficient
basis for denying a striker reinstatement to his former job
following the end of the strike25 nor are exchanges between
a striker and a supervisor away from the picket line prompt-
ed by a personal grievance and not involving any attempt to
coerce the supervisor into supporting the strike. They do not
constitute serious misconduct warranting an employer denial
of the striker’s right, as an employee, to recall to fill a va-
1163MEDITE OF NEW MEXICO, INC.
26 The Salazar/Ortiz encounter subsequent to Ortiz’ leaving the
picketing area was not mentioned in either affidavit.
cancy in his former job, following the end of the strike and
the ex-striker/employee’s unconditional offer to return to
work.
I therefore find and conclude Medite violated Section
8(a)(1) and (3) of the Act by failing to recall M. Salazar to
fill the first vacancy in the position he held prior to striking
which occurred after Medite’s receipt of his unconditional
offer to return to work, in view of his employee status, se-
niority and qualifications for the vacant position superior to
the seniority status of the employee awarded the position and
the fact that employee lacked any experience in the duties of
the position in question.
b. P. Salazar
Perry Salazar was hired in 1987; between December 1989
and June 11, 1990, when he went on strike, he worked as
a utility employee. The utility employee insures the con-
tinuity of production by relieving the form station operator,
the press operator and the refiner operator, all machines
which are computer controlled.
I have entered findings on June 13, 1990, Salazar struck
foreman Ortiz’ jeep with the picket sign he was carrying
when Ortiz’ jeep was halted by children blocking the drive-
way he was proceeding on prior to entering the highway and
that Ortiz executed affidavits in June and July 1990 utilized
in support of Medite’s injunction petition and unfair labor
practice charges against the Union.26
Salazar’s unconditional offer to return to work was ten-
dered to Medite on November 14, 1990.
The first vacancy in the position Salazar held when he
went on strike subsequent to Medite’s receipt of Salazar’s
offer occurred on December 11, 1990. It was awarded on
December 19, 1990, to a laborer hired during the strike.
Stone claimed Medite refrained from recalling Salazar to
fill the December 11, 1990 vacancy because of an honest be-
lief Salazar engaged in the conduct set forth in the June and
July 1990 Ortiz’ statements.
There is no question at the time the vacancy occurred
Salazar had superior plant and job seniority and had dem-
onstrated a long and satisfactory ability to perform the duties
of the job, while the junior employee awarded the job had
no prior experience therein.
Stone’s claim is insupportable. He did not become
Medite’s personnel director until February 1991, 2 months
after the December 19, 1990 award, he did not (and could
not) testify he refrained from recalling Salazar to fill the va-
cancy in December 1990 because of his honest belief Salazar
engaged in the June 13, 1990 conduct vis-a-vis Ortiz and
Medite failed to adduce any other proof some other manager
refrained from recalling Salazar to fill the December 11,
1990 vacancy because of such belief.
I thus conclude Medite violated Section 8(a)(1) and (3) of
the Act by failing to fill the December 11, 1990 vacancy in
the utility employee position with Salazar, in view of his em-
ployee status, seniority, and previous longtime service in that
position and by filling it instead with a junior employee with
no previous experience in the duties of the position.
c. Arturo Tafoya
Arturo Tafoya, originally hired as a laborer in May 1984,
worked as a saw forklift operator from August 14, 1984,
through the date he went on strike, June 11, 1990.
I have entered findings on June 13, 1990, Tafoya struck
Ortiz’ vehicle with his picket sign while Ortiz’ vehicle was
stopped at the picket line that day.
I have also entered findings Tafoya was in the area during
the fracas which occurred on June 20, 1990, after
Mascarenas left his vehicle and engaged in a fracas with
Coca et al., but that Tafoya did not engage in the fracas and
did not strike Mascarenas, but rather told the strikers to dis-
engage.
Lastly, I have entered findings Tafoya was not in the vehi-
cle with Coca and Montoya when an exchange of words be-
tween Coca and Mark Dominguez occurred on July 11, 1990.
Ortiz identified Tafoya as one of the pickets who struck
his vehicle with a picket sign on June 13, 1990, in the June
and July 1990 affidavits utilized by Medite in supporting its
injunction petition and unfair labor practice charges against
the Union.
Mascarenas also submitted affidavits in June and July
1990 in support of Medite’s injunction petition and unfair
labor practice charges. In one affidavit (submitted to the Re-
gion), Mascarenas stated he did not see Tafoya hit him, Fore-
man Alexander and Plant Manager Miller told him a film
taken by a guard at the gate showed Tafoya hitting him. In
the second affidavit (submitted in support of the injunction
petition), Mascarenas stated Tafoya ‘‘tried to’’ hit him. Alex-
ander also submitted an affidavit in support of the injunction
petition stating Tafoya ‘‘joined in the fray, trying to punch
Joe.’’ In their testimony before me, however, both
Mascarenas and Alexander testified Tafoya did not join in
the fracas nor does the film taken by the guard show Tafoya
hitting Mascarenas nor did the guard identify Tafoya as one
of Mascarenas’ attackers (the guard initially testified he saw
Tafoya hit Mascarenas, but under cross-examination admitted
he could not see what punches landed on Mascarenas from
his station at the guard shack across the railroad tracks in
front on the plant).
While Dominguez gave a sworn statement to an agent of
the Region on July 11, 1991 wherein he described an ax dis-
play incident involving Montoya at the picket line, he made
no mention therein of his alleged exchange with Coca while
Coca was in Montoya’s auto and Tafoya allegedly was in the
Montoya auto.
Miller did not mention any strike misconduct as a ground
for denying Tafoya consideration in filling subsequent vacan-
cies, following Miller’s receipt of Tafoya’s unconditional
offer to return to work in November 1990.
Vacancies occurred in the sander forklift operator position
on April 1 and June 6, 1991.
Stone testified generally Medite refrained from placing
Coca, Montoya, M. Salazar, P. Salazar, and Tafoya in vacan-
cies which occurred in positions they held at the time they
went on strike (or substantially equivalent positions) in an
honest belief the five engaged in misconduct during the
strike, including the Tafoya conduct set forth in the Ortiz,
Mascarenas and Alexander affidavits.
I have found Medite failed to establish Medite refrained
from placing the two Salazars in such vacancies on the basis
of such an ‘‘alleged belief.’’
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
I reach a similar conclusion with respect to Tafoya.
The first vacancy in a forklift operator position following
Medite’s receipt of Tafoya’s offer to return to work occurred
on April 1, 1991, and was awarded to a laborer hired during
the strike and subsequently awarded the position of storage
operator. Neither Garcia, an ex-striker/employee who filed an
offer to return to work prior to the vacancy, nor Tafoya, was
given any consideration for filling the vacancy.
Since Medite refrained from recalling Garcia, a senior,
qualified ex-striker/employee even better qualified than
Tafoya to fill the vacant position (since Garcia held that po-
sition at the time he went on strike), choosing instead to fill
the position with a junior striker replacement with no experi-
ence in the job, I conclude Medite never considered Tafoya
for recall to fill the vacant job, much less deciding to refrain
from recalling Tafoya to fill the vacant position because of
an ‘‘honest belief’’ he engaged in serious misconduct during
the strike.
I therefore find and conclude Medite violated Section
8(a)(1) and (3) of the Act by refraining from recalling
Tafoya to fill the vacancy in the sander forklift operator posi-
tion which occurred on April 1, 1991, but instead placed a
junior employee with less experience in the operation of a
forklift therein. Alternatively, since the facts discussed above
support a finding and conclusion ex-striker/employee Garcia
should have been recalled to fill the April 1, 1991 vacancy,
I reach a similar finding and conclusion on the same grounds
with respect to the June 6, 1991 vacancy.
d. Medite’s real motive
The Miller edict following the end of the strike, the failure
to develop a preferential recall list of ex-strikers/employees
who remained on strike until the bitter end and offered to re-
turn to work following its end, plus the the Medite conduct
detailed above, support my conclusion that, following the
end of the strike, Medite adopted the policy of refraining
from placing senior, qualified employees who remained on
strike until its bitter end and offered to return to work fol-
lowing the end of the strike, to fill vacancies in positions
they held when they went on strike or substantially equiva-
lent positions and awarded those vacancies to employees
who replaced the strikers, because those senior, qualified em-
ployees who sought recall engaged in the strike, thereby dis-
criminating against those employees for exercising their Sec-
tion 7 right to support the Union in violation of the Act.
CONCLUSIONS OF LAW
l. At all pertinent times Medite was an employer engaged
in commerce in a business affecting commerce and the union
was a labor organization within the meaning of Section 2 of
the Act.
2. Since February 1991 James D. Stone has been Medite’s
personnel director, a supervisor and agent of Medite acting
on its behalf within the meaning of Section 2 of the Act.
3. Following its receipt of unconditional offers to return to
work following the end of a strike called by the Union on
June 11, 1990, by refraining from filling vacancies which oc-
curred in positions Pete Montano, Karl Mueller, Max
Salazar, and Perry Salazar held at the time they went on
strike or, with respect to Arturo Tafoya, in a position sub-
stantially equivalent to the position Tafoya held at the time
he went on strike, because Montano et al., engaged in the
strike, Medite violated Section 8(a)(1) and (3) of the Act.
4. Inasmuch as vacancies in the positions Casias, Coca, L.
Cordova, W. Cordova, Jones, Montoya, and Sanchez held at
the time they went on strike or substantially equivalent posi-
tions have not occurred since Casias et al. tendered uncondi-
tional offers to return to work following the end of the strike,
Medite has not violated the Act by failing to recall Casias
et al.
5. The aforesaid unfair labor practices affected and affect
interstate commerce as defined in Section 2 of the Act.
THE REMEDY
Having found Medite engaged in unfair labor practices, I
recommend Medite be directed to cease and desist therefrom
and to take affirmative action necessary to effectuate the
policies of the Act.
Having found Medite violated the Act by refraining from
recalling employees Pete Montano, Karl Mueller, Max
Salazar, Perry Salazar, and Arturo Tafoya following the end
of a strike which commenced on June 11, 1990, and
Medite’s receipt of their unconditional offers to return to
work to fill vacancies in the positions they occupied at the
time they went on strike or, in Tafoya’s case, to a vacancy
in a position substantially equivalent to the position he occu-
pied at the time he went on strike, I recommend Medite be
ordered to immediately recall Montano et al. to those or sub-
stantially equivalent positions, with full seniority and all
other rights and privileges, and to make Montano et al.
whole for the discrimination practiced against them by pay-
ment to each of the sum of money equal to what each would
have earned from the date each should have been recalled
until the date each is recalled, less interim earnings during
the period, computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest on the
sum due to each computed in accordance with the formulae
of New Horizons for the Retarded, 283 NLRB 1173 (1987),
and Florida Steel Corp., 231 NLRB 651 (1967).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended27
ORDER
The Respondent, Medite of New Mexico, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to recall employees who have par-
ticipated in a strike, following their unconditional offers to
return to work, to positions they occupied at the time they
went on strike or to substantially equivalent positions as and
when a vacancy occurs.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
1165MEDITE OF NEW MEXICO, INC.
28 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Offer immediate recall to Pete Montano, Karl Mueller,
Max Salazar, Perry Salazar, and Arturo Tafoya to the posi-
tions they held on June 10, 1990, or substantially equivalent
positions, with full restoration of their seniority and other
rights and privileges, and make them whole in the manner
set forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security records, timecards, personnel records, reports,
and all other records necessary to analyze and determine the
sums due under the terms of this Order.
(c) Post at its facility in Las Vegas, New Mexico, copies
of the attached notice marked ‘‘Appendix.’’28 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 28, after being signed by Respondent’s authorized rep-
resentative, shall be posted by Respondent immediately on
receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken to ensure the notices are not altered, defaced, or cov-
ered by other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.