McGaw of Puerto Rico, Inc. v. National Labor Relations Board

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

No. 96-2288

McGAW OF PUERTO RICO, INC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

ON PETITION FOR REVIEW AND CROSS-APPLICATION

FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD

Before

Selya, Circuit Judge,

Aldrich and Coffin, Senior Circuit Judges.

Francisco Chevere with whom Ariadna Alvarez and McConnell Valdes

were on brief for petitioner.
Fred L. Cornnell, Supervisory Attorney, with whom David A. Seid,

Attorney, Frederick L. Feinstein, General Counsel, Linda Sher,

Associate General Counsel, Aileen A. Armstrong, Deputy Associate

General Counsel, and National Labor Relations Board were on brief for

respondent.

December 10, 1997

ALDRICH, Senior Circuit Judge. The National Labor

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

and order of October 31, 1996, finding that McGaw of Puerto

Rico, Inc. ("McGaw" or "the Company") engaged in various

unfair labor practices in violation of Sections 8(a)(1) and

(3) of the National Labor Relations Act ("the Act"). McGaw

responds that substantial evidence does not support the

Board's findings that it unlawfully discriminated against

employees because of their engagement in union activities

and/or to discourage others from such engagement. We

disagree, and grant the request for enforcement.

I. Factual Background

The record supports the Board's findings1 of the

following facts, arranged chronologically. McGaw has

manufactured medical devices and related products at a plant

in Sabana Grande, Puerto Rico, since 1974. With about 1100

employees working three shifts at the plant, McGaw is one of

the largest employers in the region. The Congreso de Uniones

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

organize McGaw's Sabana Grande workers since 1992. Several

1. The Board completely adopted the findings of fact,
conclusions of law, and recommended order of the
administrative law judge ("the ALJ") who heard the case in
June 1995. The Board need not make independent findings or
conduct a separate analysis of the factors prompting the
order if it specifically adopts the findings and reasoning of
the ALJ. See, e.g., NLRB v. Horizon Air Servs., Inc., 761

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

-2-

McGaw employees, including alleged discriminatees Charlie

Silva, Vigdalia Rodriguez, and Lourdes Irizarry -- all Line

Production Clerks ("LPCs") at the Company -- were active

leaders in the Union's efforts. Individually or as a group,

they distributed union authorization cards at the plant,

spoke to employees about the Union, acted as election

observers, delivered speeches over loudspeakers in front of

the plant, promoted the Union on a local radio program, wore

prounion stickers, and held union meetings at their homes.

The Company reorganized its engineering department

in 1992, eliminating, first, several mechanic positions and

later, four LPC positions. The affected employees were not

laid off, but, instead, reassigned to other positions. The

Company advised them by memo that "the elimination of these

positions was carried out taking into consideration several

factors such as general skills and abilities, seniority,

attitude and others concerning general performance."

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

in February 1993. After 48 ballots were challenged, the

parties stipulated to a second election, to be conducted on

November 9 by the Board. In the meantime, McGaw was

undergoing significant operational reorganization. Ira

Marshall ("Marshall"), appointed General Manager at Sabana

Grande in July 1993, found the existing operations a

"disorganized mess" and set about a multi-million dollar

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overhaul of the plant's production system. Central to the

reorganization of the Company's operations was the phased

replacement of its "workcell" production method with a

conveyor belt system. Under the workcell system, each

employee completely assembled a given product. LPCs liaised

between supervisors and production employees, keeping track

of production by performing largely clerical tasks. Under

the new conveyor system, each employee performed a discrete

partial assembly step. LPCs often worked the conveyor belt

alongside production employees during the transition,

although installation of the belts rendered obsolete much of

their clerical responsibilities.

In October 1993, the Company laid off some 140

employees as part of its restructuring. Preceding the

layoff, Human Resources Manager Alex Solla informed the

employees by memo that "[s]eniority (employment date) by

classification and general performance are the criteria used

in order to determine affected employees," and that "hourly

employees affected and having more seniority in the

organization will be offered the opportunity of

bumping/replace [sic] other employees with less seniority in

Assembler I positions." In the same month, the Company

closed its sterilization department and transferred about ten

affected employees to production.

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In the following month, McGaw installed its first

conveyor belt. Also, the Board conducted its second

election, in which the Union failed to get a majority vote.

Weeks before the election, a Company supervisor had asked LPC

Maria Belen whether she had been "promoting the Union amongst

the employees." Company officials also asked her why she had

not identified herself as a non-union employee by wearing a

"NO" sticker, to which she replied that she considered

herself a key person among employees and that wearing such a

sticker might create friction within the Company.

Restructuring continued in February 1994, the

Company laying off close to twenty employees. Also in

February, the Company changed its LPC shift assignment policy

from classification seniority to plantwide seniority. The

Company notified affected employees of its "new change of

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

company, we have restructured the assignment of work shifts

of the line production clerk position, in accordance to the

date when the incumbents in such position began working at

[the Company] (plant seniority)." LPCs Nilsa Nazario and

Vigdalia Rodriguez, forced to take less desirable shifts,

complained to management about the change and lack of prior

notice. At a February 28 meeting with a supervisor,

Rodriguez asked about the change, and received the vague

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

-5-

Sometime in February or March, a supervisor asked

LPC Raquel Gonzalez, a member of the "Vote No" group, to

report to management any future union activity of LPC Lourdes

Irizarry known to Gonzalez. Gonzalez promised to comply, but

never in fact reported anything about Irizarry.

In a conversation on or about March 10, Human

Resources Manager Solla told LPC Silva that he and other

employees "were mistaken with the union idea because if

Sabana Grande had been a large town, the Union would have

won. But since Sabana Grande was a small town, it was a town

with people with small minds. And that it would be easy for

the Company to scare people and get them to vote against the

Union."

Sometime in April, Production Superintendent

Geraldo Gonzalez asked LPC Belen "what kind of comments [she]

had overheard about the Union." He later told her that if

the Union "came back," McGaw's owners would not fight the

Union, but rather would close the plant without warning and

without paying workers for their final week of work.

Gonzalez further added that "the people that were laid off

for that reason would not be able to get work from other

companies because they would know that the reason for the

layoff was because of unions."

It became clear to Company management sometime

during the first half of 1994 that personnel changes would

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accompany the production transition. In a May 18 memo to

Solla, Marshall indicated his views as to the need for "less

unskilled people" under the conveyor system, the need to

establish a "new more technical and flat organization," and

the need to replace "many people that cannot adapt to the

technology." He instructed Solla to meet with Operations

Manager Juan Luis Santa to "develop a tentative plan to

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

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

Around the same time, the Union campaigned for a

third election. Union president Jose Figueroa, along with

LPCs Silva and Irizarry and mechanic Juan Vargas, arranged

for a May 29 meeting of prounion employees, held at a local

beach. A McGaw supervisor stood within visual range of the

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

was seen nearby.

Management memos and documents dated shortly after

the May 29 Union meeting confirm the Company's determination

to eliminate LPC positions. In a June 8 memo to his

supervisor, Gary Sielski, Marshall indicated the anticipated

elimination of 10 LPC positions, stating that "[t]he

objective will be to discharge people by performance,

educational training, and seniority. We are doing this . . .

[because] [w]e need people with the discipline to manage the

[conveyor] system. They must also have the education to

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learn to use the system and perform additional reporting and

record keeping." In a memo to Marshall the following day,

Operations Manager Santa stated that he had requested Human

Resources Manager Solla to "reduce ten (10) production line

clerks, based on performance, academic background, and

seniority," with the direction that the reduction occur no

later than the end of June. On June 13, Marshall submitted a

"Monthly Activity Report" to Sielski, setting forth the

Company's activities, plans, and priorities, and identifying

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

priorities. The Report also stated the Company's plans to

"hire 39 people, 29 for increased production and 10 for

backlogged rework."

On or about June 22, Company officials, including

Marshall, Solla, and Employee Relations Manager Miriam

Figueroa, met with employees. According to LPC Rodriguez,

Marshall stated that "he did not want third parties involved

in the plant with them because [the employees] could talk

with them, or dialogue with them." She further testified

that Marshall stated that "neither the employees nor the

supervisors needed to talk about the Union, that the only

people that could talk about Unions were himself and Alex

Solla." LPC Silva testified that Marshall stated that the

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

benefits, and that he "didn't want third parties to come in

-8-

order to obtain those benefits for the employees." Silva

recalled that Marshall said he "did not want to hear

employees talking in the hallways, whether it be pro or con,

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

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

Solla in his office." Silva also testified that Marshall

told the employees that "things were looking good" at the

company, that sales were up, and that "at the moment there

were no plans to fire or dismiss anybody."

Marshall claimed that, because emotions about the

Union were running high, he stressed to the employees at the

meeting that "no one was to be threatening anyone . . . for

supporting or not supporting the Union." He claimed that it

was Solla rather than he who told the employees that only he

and Solla were authorized to discuss the Union, and that the

statement referred to those management officials who were

authorized to speak on behalf of the Company regarding the

Union. Figueroa testified that Marshall informed the

employees that he would not allow any threats among

employees, and that anyone who felt threatened should speak

with Solla or him. Figueroa's testimony was consistent with

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

management representatives allowed to "make any updates on

the Union" were Marshall and Solla.

-9-

Barely more than a week later, on June 30, the

Company laid off nine LPCs. The nine were laid off without

warning, and strictly according to plantwide seniority rather

than the manifold criteria listed in the Marshall and Santa

memos. Marshall testified that Santa, rather than he, was

responsible for the change, and claimed that Santa and Solla

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

"just stick with Law 80"2 and go by "length of service."

Company officials conducted layoff interviews with the

affected employees, who were told that the layoffs were due

to restructuring. Several asked about being transferred to

other positions, as had been the Company's past practice.

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

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

policy is that if a job classification is eliminated, there

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

relocate people in lower positions, and that the policy had

changed," and "we don't have any openings at that time, and

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

June layoff, the Company hired about 50 "temporary"

production employees, and would have refused to rehire any of

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

2. "Law 80" is Puerto Rico Public Law 80, 29 L.P.R.A.
185a-m. Law 80 addresses an employer's obligations in
reducing its workforce. The Company's claims with respect to
Law 80 are addressed below.

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The Company installed two additional conveyor belts

in July 1994, and two more in April 1995.

II. Procedural Background

Pursuant to charges filed by the Union, the Board

issued a complaint and notice of hearing on March 24, 1995.

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

the National Labor Relations Act ("the Act"), 29 U.S.C.

158(a)(1), by soliciting employees to spy on and report

other employees' union activities, expressing to employees

the futility of engaging in union activities by telling them

it was easy to instill fear in them so that they would vote

against the Union, interrogating an employee concerning the

Union's activities at the Company's plant, threatening

employees with plant closure and loss of wages if they

supported the Union, threatening to "blackball" employees

regarding future employment opportunities if they supported

the Union, and prohibiting employees from talking about the

Union at the plant. The complaint further alleged that McGaw

violated Section 8(a)(3)4 of the Act, 29 U.S.C. 158(a)(3),

3. Section 8(a)(1) provides that "[i]t shall be an unfair
labor practice for an employer to interfere with, restrain,
or coerce employees in the exercise of" their statutory
rights to self-organize, form, join, and assist labor
organizations, and engage in collective bargaining.

4. Section 8(a)(3) provides, in relevant part, that "[i]t
shall be an unfair labor practice for an employer by
discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or
discourage membership in any labor organization . . . ."

-11-

by changing its seniority policy from classification to

plantwide seniority and by laying off nine LPCs on June 30

because they joined and assisted the Union, and/or to

discourage employees from engaging in Union activities.

Named as discriminatees in the complaint were LPCs Jose Luis

Pacheco, Francisco Jusino, Raquel Gonzalez, Scipio Vega,

Lourdes Irizarry, Maria Belen, Charlie Silva, Vigdalia

Rodriguez, and Nilsa Nazario.5

The Company denied the allegations. After a full

hearing, the administrative law judge ("the ALJ") sustained

each of the Union's allegations, finding as a matter of law

that McGaw had violated Sections 8(a)(1) and (3) of the Act.

Following these findings was a detailed remedy and

recommended order. McGaw timely excepted, and a three member

panel of the Board affirmed the ALJ's rulings, findings, and

conclusions, and adopted his order with slight modification.

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

and make whole those unlawfully laid off. We have

jurisdiction over McGaw's appeal pursuant to Sections 10(e)

and (f) of the Act, 29 U.S.C. 160(e) and (f).

III. Discussion

A. Standard of Review

5. At the hearing, the Company and Irizarry entered into a
private settlement agreement, approved by the ALJ, whereby
Irizarry waived her right to reinstatement. Various other
complaint allegations were settled or otherwise disposed of
at the hearing.

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"We will enforce a Board order if the Board

correctly applied the law and if substantial evidence on the

record supports the Board's factual findings." Union

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

also, e.g., Sullivan Bros. Printers, Inc. v. NLRB, 99 F.3d

1217, 1221 (1st Cir. 1996). As long as the Board's

interpretation of applicable statutes is "reasonably

defensible," Kelley v. NLRB, 79 F.3d 1238, 1244 (1st Cir.

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

we would have reached a different conclusion." Union

Builders, 68 F.3d at 522; see also Providence Hosp. v. NLRB,

93 F.3d 1012, 1016 (1st Cir. 1996) ("[A]ppellate courts

ordinarily should defer to the Board's interpretations of the

statutes it must enforce, such as the NLRA, whenever such

interpretations flow rationally from the statutory text.");

Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir.)

("The court may not substitute its judgment for that of the

Board when the choice is between two fairly conflicting

views, even though the court would justifiably have made a

different choice had the matter been before it de novo

. . . ." (internal quotations omitted)), cert. denied, 464

U.S. 892 (1983).

The Board's findings of fact are "conclusive" if

"supported by substantial evidence on the record considered

as a whole." 29 U.S.C. 160(e). "'Substantial evidence is

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more than a mere scintilla. It means such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion.'" Penntech Papers, 706 F.2d at 22 (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)).

In determining whether such substantial evidence exists, we

"must take into account whatever in the record fairly

detracts from the Board's fact finding as well as evidence

that supports it." Id. (internal quotations omitted). We

will "sustain inferences that the Board draws from the facts

and its application of statutory standards to those facts and

inferences as long as they are reasonable." NLRB v.

Laverdiere's Enters., 933 F.2d 1045, 1050 (1st Cir. 1991).

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

to great weight since he saw and heard the witnesses

testify." Holyoke Visiting Nurses Ass'n v. NLRB, 11 F.3d

302, 308 (1st Cir. 1993); see also NLRB v. Horizon Air

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

B. Section 8(a)(1) Violations

Whether by oversight or admission, McGaw has not

here contested the Board's findings that it violated Section

8(a)(1) by soliciting employees to spy and report, making

union activity appear futile, interrogating employees,

threatening plant closure and loss of wages, threatening to

"blackball" union supporters, and prohibiting employees from

talking about the union. By failing to contest these

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findings, McGaw has waived its right to object to them as

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

the unlawful practices underlying these uncontested findings

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

but rather remain to inform our consideration of the Board's

other findings. NLRB v. Clark Manor Nursing Home Corp., 671

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

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C. Section 8(a)(3) Violations

It is an unfair labor practice "for an employer by

discrimination in regard to hire or tenure of employment or

any term or condition of employment to encourage or

discourage membership in any labor organization." 29 U.S.C.

158(a)(3). Whether an employer's action adverse to

employees is a 8(a)(3) violation turns on the employer's

primary motivation. See generally NLRB v. Transportation

Management Corp., 462 U.S. 393, 397-403 (1983). If the goal

is to discourage union activity, there is a violation. If

there is no anti-union motive, or if the same action would

have been taken based on some other, non-discriminatory,

motive, there is no violation. Motive may be inferred from

both direct and circumstantial evidence. See NLRB v. Pilgrim

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

The General Counsel makes a prima facie showing of

unlawful discrimination by establishing: (i) protected

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

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

a causal connection between the animus and the action taken

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

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

F.2d at 118. In other words, the General Counsel must prove

at the outset that "the employee's protected conduct was a

substantial or motivating factor for the discharge" or other

-16-

adverse action. Horizon Air Servs., 761 F.2d at 27. The

burden then shifts to the employer to prove, by a

preponderance of the evidence, that it had another motive

that was both legitimate (non-pretextual and based on other

than protected conduct) and primary (would have produced the

same outcome regardless of the protected activity). See

Transportation Management, 462 U.S. at 400-05; see also,

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

Doggedly, McGaw attacks each element of the prima

facie case. It first contends that not all of those laid off

engaged in protected activities, and that laying off the nine

LPCs did not eliminate all of the Union's active supporters,

some of whom were not LPCs. McGaw demands more than is

required. Some of those laid off -- Irizarry, Silva, and

Rodriguez -- clearly were among the Union's most ardent

supporters, and the Company need not lay off all union

supporters at once to violate 8(a)(3). See NLRB v.

Instrument Corp. of Am., 714 F.2d 324, 330 (4th Cir. 1983).

Ordering layoffs "for the purpose of discouraging union

activity or in retaliation against . . . employees because of

the union activities of some" violates 8(a)(3), even if

some of those laid off were neutral or even against the

union. Birch Run Welding & Fabricating, Inc. v. NLRB, 761

F.2d 1175, 1180 (6th Cir. 1985); see also Merchants Truck

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

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McGaw then claims it did not know of the union

activities of those laid off, and in any case, harbored no

anti-union sentiment. This strains credibility. LPCs

Rodriguez, Irizarry, and Silva each were overt and active

Union supporters, both within and without the plant. Before

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

observing union activity at the plant. Further, McGaw failed

to explain credited allegations that Company officials

solicited an employee to spy and report on Irizarry's union

activities and, barely a month before the June layoffs,

observed the Union meeting at the beach where Silva and

Irizarry were present. Also, McGaw's denial of anti-union

animus falls flat in light of Marshall's comments about

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

of the plant, the Company's attempts to spy on Irizarry and

to intimidate union supporters through interrogation and

various threats, the Company's interrogation of LPC Belen as

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

of discussion of the Union among employees. Substantial

evidence supports the Board's findings of both knowledge and

anti-union animus.

Closing its assault on the General Counsel's prima

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

supporters were laid off, a sufficient causal connection

between any anti-union animus and its actions is absent. As

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noted, adverse action may be unlawfully discriminatory

whether or not all union adherents suffer at once. See Birch

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

Line, 577 F.2d at 1016. In any case, McGaw misses the mark;

it is the departure from past Company practices, in

combination with the LPC layoffs, that the Board found to be

a violation. It is undisputed that, had McGaw used

classification seniority to effectuate the June layoffs, LPCs

Irizarry, Rodriguez, and Belen would not have been laid off.

Also, McGaw inexplicably departed from its past practice of

relocating, rather than laying off, workers when a position

was phased out. This occurred at a time when its managers

expressed the need for "less unskilled people" under the

conveyor system and more people with the "education to learn

to use the system and perform additional reporting and record

keeping," and at a time when it planned to hire about 40

people for production and rework (and in fact hired about 50

"temporary" production employees following the layoff).

These facts, together with McGaw's knowledge of Irizarry's

and Rodriguez's union activities, its suspicion of Belen's

union sentiments, and its anti-union animosity, support the

Board's inference that McGaw changed its LPC seniority policy

in February 1994 if not to discriminate immediately against

union supporters then to lay the groundwork for the eventual

termination of key union leaders in the LPC position. We

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reject McGaw's position that no causal connection existed,

and instead accept the Board's conclusion that such adverse

action, calculated to affect key Union leaders, unlawfully

discriminated against Union activists and/or was taken to

discourage others from supporting the Union.

Prepared for rejection of its first round of

argument, McGaw responds that legitimate business reasons

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

union animosity. The Board accepted that the Company's

production transition inevitably would render obsolete many

of the LPCs' traditional functions, and we do not disagree.

But again, McGaw misses the point. The issue is not whether

McGaw had a primary nondiscriminatory reason for the layoffs

generally, but rather whether it had such a reason to depart

from its past practices, departures which appear to have been

calculated to adversely impact employees engaged in protected

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

1181 (noting that "an employer's deviation from past

practice" is persuasive evidence of an unlawful motive); cf.

Transportation Management Corp., 462 U.S. at 404

(highlighting employer's departure from its usual practice);

Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 814 (3d Cir.

1986) (same), cert. denied, 481 U.S. 1069 (1987); Merchants

Truck Line, 577 F.2d at 1016 (same). To this, McGaw

persistently but rather lamely maintains that it never

-20-

changed policies at all. We must reject this; not only do

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

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

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

Board did not disturb this credibility finding; nor do we.

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

non-discriminatory, does not explain why the Company changed

its seniority and relocation policies.

Finally, McGaw points to Puerto Rico Public Law 80,

29 L.P.R.A. 185a-m ("Law 80"), as requiring it to make

layoffs according to plantwide seniority. Despite the weight

of the evidence, McGaw maintains that it has always used

plantwide seniority, in accordance with Law 80, in

effectuating layoffs. Its unstated argument, apparently, is

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

seniority from classification seniority was nondiscriminatory

because Law 80 required the change. The Board did not agree;

nor do we.

Law 80 entitles employees who are discharged

"without good cause" to severance compensation, calculated in

part by years of service. See 185a. "Good cause," in

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

employer's operations, 185b(d), technological or

reorganization changes, 185b(e), and reductions in

employment made necessary by a reduction in the anticipated

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or prevailing volume of production, sales, or profits at the

time of the discharge, 185b(f). In any of these three

circumstances, the employer has a

duty . . . to retain those employees of
greater seniority on the job with
preference, provided there are positions
vacant or filled by employees of less
seniority in the job within their
occupational classification which may be
held by them . . . except . . . in those
cases in which there is a clear and
conclusive difference in favor of the
efficiency or capacity of the workers
compared, in which case the capacity
shall prevail . . . .

185c. McGaw clings to this provision as a statutory

command to use plantwide, rather than classification,

seniority.

The meaning of 185c is less than clear. The word

"job" could refer to employment generally (i.e.,

"plantwide"), or to employment in a specific position. The

Guidelines for the Interpretation and Application of Law 80,

May 30, 1976 ("Guidelines"), promulgated by the Puerto Rico

Department of Labor and Human Resources, indicate the former,

although they are nevertheless ambiguous as to the meaning of

185c. On the one hand, the Guidelines say:

If there is a need to dismiss employees
within any or some occupational
classifications, the employer will be
obligated to retain with preference in
said classifications the employees with
the greatest seniority in the company,

and to that effect all the time worked
continuously and uninterruptedly for the
company will be considered, regardless of

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the occupational classifications where
they were performed.

Guidelines, 9 (emphasis added). On the other hand, the

Guidelines say: "When the employer needs to lay off workers

. . . he does not necessarily have to do so following an

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

at 10.6

Whatever the meaning of 185c, its role within the

scheme of Law 80 and Law 80's relation to federal labor law

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

to give it. First, as we have previously noted, Law 80 does

not require an employer to use plantwide seniority, but

merely provides employees with an action for severance pay if

discharged "without good cause." See Rodriguez v. Eastern

Air Lines, Inc., 816 F.2d 24, 28 (1st Cir. 1987). Thus,

whether Law 80's seniority provision, whatever its meaning,

has been complied with is relevant only to the existence of

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

if the skills required to operate
machinery, to work new designs or to
adapt to new procedures can be easily
acquired through a simple and inexpensive
training the employer is under the
obligation to provide said training and
cannot fire the employees who need it
under penalty of being responsible under
Law No. 80.

Id. at 18. Insufficient facts have been adduced to determine

whether this provision applies in this case, although it does
suggest that McGaw may have had some duty to re-train the
affected LPCs.

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"good cause." Law 80 does not, as McGaw argues, require it

to use plantwide seniority, but at most merely says that if

it does not, it may have to provide severance pay. Cf.

Rivera v. Security Nat'l Life Ins. Co., 106 D.P.R. 517, 527

(1977). "[B]ut an employer willing to pay the price is free

to discharge whomever he or she pleases." Rodriguez, 816

F.2d at 28. In short, "[a]lthough Law 80 obviously is

designed to assist those injured by arbitrary discharge

practices, there is every indication from its language and

other sources that the legislature intended to avoid direct

interference with the employer's business operation," id.,

including its seniority and relocation policies. McGaw's

practices and statements indicate that, before the June 1994

layoff, it used criteria other than plantwide seniority and

allowed senior affected employees to relocate. It would be

perverse indeed to allow it now to invoke a statute enacted

for the protection of workers as a justification for its

unlawful labor practices. Second, the Guidelines indicate

that "if [a] dismissal of an employee turns out to be an

illegal work practice, the applicable law is the Puerto Rico

Labor Relations Act or the National Labor Relations Act, as

the case may be." Guidelines, 11. Because McGaw's actions

were unlawful under the latter, that is the controlling

authority. Finally, McGaw does not direct us to any case law

interpreting Law 80 in a manner helpful to its argument.

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IV. Conclusion

We conclude that, because substantial evidence

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

The Board's findings of various 8(a)(1) violations are

summarily affirmed, given McGaw's failure to challenge them.

Further, we accept the Board's conclusion that substantial

evidence indicates that the challenged layoffs were motivated

primarily by anti-union animus and that McGaw's

justifications for the particular layoffs at issue are

insufficient. Although McGaw may have had a legitimate

reason for the LPC layoffs generally, it had no such reason

for its changes in policy, which, together with the layoffs,

adversely affected leading union activists and/or were taken

to discourage others from supporting the Union. Viewed in

light of McGaw's anti-union animus, we have no trouble

accepting that the layoffs constituted unlawfully

discriminatory labor practices under the Act. Given McGaw's

contention that the LPC position no longer exists at its

plant, we leave the issue of reinstatement to compliance

proceedings.7 Cf. Holyoke Visiting Nurses Ass'n, 11 F.3d at

308; NLRB v. Globe Mfg. Co., 580 F.2d 18, 21-22 (1st Cir.

1978).

7. The Board ordered McGaw to "offer [the discriminatees]
full . . . reinstatement to their former jobs or, if those
jobs no longer exists [sic], to substantially equivalent
positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed."

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The order of the Board shall be enforced.

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