United States Court of Appeals
For the First Circuit
No. 05-1274
NATIONAL LABOR RELATIONS BOARD,
Petitioner/Cross-Respondent,
v.
PAN AMERICAN GRAIN CO., INC. and
PAN AMERICAN GRAIN MANUFACTURING CO., INC.,
Respondent/Cross-Petitioner.
ON APPLICATION FOR ENFORCEMENT AND CROSS-PETITION FOR
REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Stahl, Senior Circuit Judge.
Ruperto J. Robles and Rafael J. Lopez on brief for
respondent/cross-petitioner.
Arthur F. Rosenfeld, Acting General Counsel, John E. Higgins,
Jr., Deputy General Counsel, Margery E. Lieber, Acting Associate
General Counsel, Aileen A. Armstrong, Deputy Associate General
Counsel, Meredith L. Jason and Christopher W. Young on brief for
petitioner/cross-respondent.
SUPPLEMENTAL OPINION
May 31, 2006
BOUDIN, Chief Judge. After our decision in this case,
NLRB v. Pan American Grain Co., 432 F.3d 69 (1st Cir. 2005), a
controversy developed between the parties concerning the scope and
phrasing of the order to be issued to enforce those portions of the
National Labor Relations Board's original order that we did not
vacate on review. The controversy is a narrow but important one.
The original dispute in this petition for review
concerned the scope of obligations owed by the employer, Pan
American Grain Company, Inc. ("Pan American"), in relation to 15
employees who were laid off in February 2002 while they were on
strike. Pan American, 432 F.3d at 70-71. The Board found that Pan
American had a duty to bargain with the Union over the decision to
lay these 15 employees off and, as Pan American concededly did not
fulfill this duty, the Board ordered Pan American to reinstate
these employees to their former positions and to provide them full
back pay--its customary remedy in cases where an employer has a
duty to bargain over an employment termination decision but fails
to do so. Id. at 71, 73.
For its part, Pan American argued that its decision to
lay off the employees was not the sort of decision covered by the
mandatory bargaining requirements of the National Labor Relations
Act. Pan American, 432 F.3d at 71. Pan American has conceded it
had a duty to bargain with the employees over the effects of the
layoff, but argued that the proper remedy for its failure to do so
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was to award the employees limited back pay (and no reinstatement)
under the Board's rule in Transmarine Navigation Corp., 170
N.L.R.B. 389 (1968). Pan American, 432 F.3d at 71.
On the record before us, we held that the Board had not
sufficiently explained its decision that Pan American had a duty to
bargain over the layoff decision itself as opposed to only the
effects. Id. at 74. In concluding our decision, we vacated those
portions of the Board's order that imposed obligations on Pan
American with respect to the 15 employees, remanded for further
proceedings consistent with our opinion, and granted enforcement of
the remaining, uncontested portions of the order pursuant to E.C.
Waste, Inc. v. NLRB, 359 F.3d 36, 41 (1st Cir. 2004). Pan
American, 432 F.3d at 71 n.2, 74-75.
Our original decision issued on December 22, 2005. On
February 6, 2006, the Board filed a motion under Fed. R. App. P. 19
submitting a proposed judgment that the Board stated conformed to
our December opinion. In that motion, the Board asked this court
to vacate our December judgment and substitute the Board's proposed
judgment in its place. On March 21, 2006, this court issued an
order explaining that parts of the Board's suggested substitute
judgment appeared to be inconsistent with our disposition of the
case, and we gave the Board 14 days to respond to our concerns and
Pan American then 14 days to reply.
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The Board then filed a second proposed substitute
judgment, on April 4, 2006, and Pan American filed a reply opposing
this latest proposed substitute judgment. The controversy in this
latest round of filings concerns what obligations, if any, Pan
American has towards the 15 employees laid off in February 2002
independent of and prior to the resolution on remand of the "duty
to bargain" issue.
Specifically, the Board asserts that Pan American is
required to provide these same 15 employees "with reinstatement to
their previous positions, or substantially equivalent positions,
that have or will become available subsequent to the unconditional
offer to return to work" made by the employees in August 2002, and
must further "[m]ake the former strikers whole for any loss of
earnings and/or other benefits that they suffered as a result of
the discriminatory reduction in their wages and their denial of
reinstatement" as positions became available.
The Board's claim turns upon a set of issues that were
never presented, or at least never clearly discussed, by either
side on the original petition for review. The pertinent background
facts are that after abolishing their positions in February 2002,
Pan American voluntarily rehired the same 15 employees in October
and November 2002, although into different positions than they held
prior to their strike and at entry-level wages. The company also
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rehired 25 or 26 other employees who had been on strike and whose
positions had never been abolished.
Then, in the administrative proceeding that led to the
original petition for review, the Board (in addition to ruling on
the "duty to bargain" issue as to the 15 employees) found that Pan
American had unlawfully reduced the wages of former strikers who
returned to work after the strike, and had unlawfully denied these
former strikers reinstatement to their former positions, or
substantially equivalent positions, as they became available
subsequent to the strikers' unconditional offer to return to work.
This, the Board said, contravened its rule in Laidlaw Corp., 171
N.L.R.B. 1366, 1369-70 (1968), enforced, 414 F.2d 99 (7th Cir.
1969), cert. denied, 397 U.S. 920 (1970):
[E]conomic strikers who unconditionally apply
for reinstatement at a time when their
positions are filled by permanent
replacements: (1) remain employees; and (2)
are entitled to full reinstatement upon the
departure of replacements unless they have in
the meantime acquired regular and
substantially equivalent employment, or the
employer can sustain his burden of proof that
the failure to offer full reinstatement was
for legitimate and substantial business
reasons.
Pan American has not disputed the application of the
Laidlaw rule to the other 25 or 26 strikers whose positions were
filled by replacement workers rather than permanently eliminated.
What is at issue is whether the 15 employees laid off in February
2002 were covered, or in any event could properly be covered, by
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the Board's Laidlaw holding. Pan American points to findings of
the administrative law judge ("ALJ") that suggest that those 15
employees' positions were not filled by permanent replacements but
were permanently eliminated. Pan American Grain Co., 343 N.L.R.B.
No. 47, at 18-19 (2004).
The Board insists that regardless of whether these 15
employees were entitled to bargain over their layoffs, they are
entitled to the Laidlaw relief "because they participated in the
strike to the same extent as other employees, were included in the
Union's unconditional offer to return to work, and were reinstated
by the Company under the same discriminatory terms and conditions
of employment as other former strikers." Pan American responds
that providing the 15 laid-off employees with Laidlaw relief would
cause this court's decision to remand to "lose any practical
effect" by giving the employees quite similar relief regardless of
the outcome on remand.
Each side has something to be said in its favor. In the
ALJ's original order, approved largely intact by the Board, the ALJ
did suggest (in a footnote) that the Laidlaw remedy was to apply to
all the strikers who had been rehired, including the 15 who had
been laid off in February 2002. Pan American, 343 N.L.R.B. No. 47,
at 26 n.53. But there was no explanation as to why and how the
Board could apply the Laidlaw doctrine, targeted at economic
strikers who are permanently replaced, to people whose jobs were
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properly abolished (if that is what happened in this case). And,
perhaps only by happenstance, the Board on appeal took out the
ALJ's footnote clarifying that the Laidlaw remedy applied to all
strikers, including the 15 laid off in February 2002, rather than
just to those 25 or 26 strikers whose positions Pan American did
not claim to have eliminated.
Nowhere in the Board's arguments to this court did the
Board say squarely that most of what was being argued on this
petition for review as to the 15 employees was moot because of the
Board's alternative Laidlaw theory. Yet, to the extent the Board's
original order is properly read as applying the Laidlaw theory to
the 15 strikers, perhaps Pan American was obliged to attack this
alternative theory on the original petition for review. In turn,
Pan American can argue with some basis in the record that the Board
itself never clearly told the court prior to our decision that it
so read its own order.
Our present understanding of the entire Laidlaw matter is
pieced together from comments made in the Board's latest filing and
in Pan American's reply. The controversy was not briefed on the
original petition for review and was never decided by us. Nor,
based on the fragments of argument presented post-decision, are we
now in a position to decide those issues. Accordingly, we are
unwilling at this time to enforce the Board's proposed substitute
order on the Laidlaw theory as to these 15 strikers.
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At the same time, we conclude that the Board should be
free in the remanded proceeding expressly to order Laidlaw relief
for the 15 employees if it views that as appropriate and consistent
with its prior intentions. Assuming the Board does so and that the
issue is not mooted by the Board's "duty to bargain" determinations
on remand, the Laidlaw relief including any objections to it that
Pan American chooses to make will be available for appellate
consideration on future appellate review directed to whatever order
is entered in the remanded proceeding. We express no view on this
or any other issue that may be considered by the Board on remand.
The Board's motion to vacate our December 2005 judgment
and substitute its own version is denied without prejudice to the
Board's ability to determine in the remanded proceeding that the
Laidlaw remedy should apply to the 15 laid-off employees. Review
of any new order entered on remand may be sought in the usual
course. But, as review would effectively be a continuation of the
present case, our Clerk's Office should assign any new review
petition pertaining to the remanded proceeding to the present
panel. We vacate our original judgment and reenter it as of today
so that each side has an opportunity to seek rehearing and/or
rehearing en banc from that judgment as reaffirmed and clarified by
today's decision.
It is so ordered.
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