
USCA1 Opinion

	




                            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                                         -3-            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.                                         -4-                      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                                         -6-            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                                         -7-            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.                                         -10-                      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.                                         -12-                      "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                                         -13-            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                                         -14-            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).                                         -15-                      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).            __________    ____                                         -17-                      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                                         -18-            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                                         -19-            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                                         -21-            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                                         -22-                      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.                                         -23-            "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.                                         -24-                                   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."                                         -25-                      The order of the Board shall be enforced.                      _________________________________________                                         -26-
