National Labor Relations Board v. Oregon Steel Mills, Inc., Oregon Steel Mills, Inc. v. National Labor Relations Board

47 F.3d 1536 148 L.R.R.M. (BNA) 2656 , 63 USLW 2608 , 129 Lab.Cas. P 11,289 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OREGON STEEL MILLS, INC., Respondent. OREGON STEEL MILLS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 92-70645, 92-70658. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 4, 1994. Decided Feb. 22, 1995. Wayne D. Landsverk, Newcomb, Sabin, Schwartz and Landsverk, Portland, OR, for respondent-cross-petitioner. Aileen A. Armstrong, Peter Winkler and Fred L. Cornnell, N.L.R.B., Washington, DC, for petitioner-cross-respondent. On Application for Enforcement and Petition for Review of an Order of the National Labor Relations Board. Before: ALARCON, NORRIS, and LEAVY, Circuit Judges. Opinion by Judge NORRIS; Partial Concurrence and Partial Dissent by Judge ALARCON. WILLIAM A. NORRIS, Circuit Judge: 1 The National Labor Relations Board seeks enforcement, and Oregon Steel seeks review, of the Board's November 30, 1990 order declaring that Oregon Steel violated sections 8(a)(1) and (3) of the National Labor Relations Act ("Act"), 29 U.S.C. Secs. 158 (a)(1) and (3), by failing to reinstate former strikers and removing five…

Opinion by Judge NORRIS; Partial Concurrence and Partial Dissent by Judge ALARCON.

The National Labor Relations Board seeks enforcement, and Oregon Steel seeks review, of the Board’s November 30, 1990 order declaring that Oregon Steel violated sections 8(a)(1) and (3) of the National Labor Relations Act (“Act”), 29 U.S.C. §§ 158 (a)(1) and (3), by failing to reinstate former strikers and removing five former strikers from the preferential reinstatement list. We grant enforcement of the Board’s order.

I

Oregon Steel challenges on three grounds the ALJ’s and the NLRB’s decision that Oregon Steel violated sections 8(a)(1) and (3) of the National Labor Relations Act 1 by bypassing qualified former strikers in favor *1538 of temporary workers obtained through independent employment agencies.

“An employer must reinstate an economic striker who offers unconditionally to return to work, unless the employer has a substantial and legitimate business reason for refusing to do so.” Zapex Corp. v. NLRB, 621 F.2d 328, 333 (9th Cir.1980) (citing NLRB v. Int’l Van Lines, 409 U.S. 48, 50-51 , 93 S.Ct. 74, 76-77 , 34 L.Ed.2d 201 (1972)); NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333,…

concurring and dissenting.

I concur in Part II of the opinion.

I respectfully dissent from Part I of the opinion.

The ALJ concluded that Oregon Steel Mills, Inc. (“Oregon Steel”) engaged in an unfair labor practice by failing to reinstate former strikers to positions occupied by employees of temporary service agencies. Robert Sikora, Oregon Steel’s Vice-President of manufacturing, testified that the use of the employees of temporary service agencies was motivated solely to save 40% in its labor costs because it was not required to pay benefits to the contract workers. As I will explain below, the ALJ erroneously discredited as unbelievable Mr. Sikora’s testimony of Oregon Steel’s legitimate and substantial reasons in violation of the Supreme Court’s decision in St. Mary’s Honor Ctr. v. Hicks, -U.S.-,-, 113 S.Ct. 2742, 2748 , 125 L.Ed.2d 407 (1993).

The ALJ also held that Oregon Steel had failed to prove, as an affirmative defense, *1541 that it had a legitimate and substantial business justification for “using contract labor and temporary employees to perform bargaining unit work when qualified employees on the preferential rehire list were available.” The ALJ’s ruling that…