*1 opinion inconsistent ings as are claim. § 1983 REMANDED. AND

REVERSED RELATIONS LABOR NATIONAL Petitioner, BOARD, v. MILLS, STEEL OREGON Respondent. INC., MILLS, STEEL OREGON Petitioner, INC., RELATIONS NATIONAL LABOR Respondent. BOARD, 92-70645, 92-70658. Nos. Appeals, States Court United Ninth Circuit. 4,May Argued and Submitted 22, 1995. Decided Feb.

Wayne Landsverk, Newcomb, D. Sabin, Landsverk, Portland, OR, and Schwartz respondent-cross-petitioner.

Aileen A. Armstrong, Peter Winkler and Cornnell, N.L.R.B., Fred L. Washington, DC, for petitioner-cross-respondent. ALARCON, NORRIS, Before: and LEAYY, Judges. Circuit Opinion by Judge NORRIS; Partial Concurrence and Judge Partial Dissent ALARCON. NORRIS,

WILLIAM A. Judge: Circuit The National Labor Relations Board seeks enforcement, review, Steel seeks Board’s November 1990 order de- claring Steel violated sections 8(a)(1) (3) of the National Labor Rela- 158(a)(1) (“Act”), §§ Act tions 29 U.S.C. (3), by failing to reinstate former removing five former strikers from the grant list. We enforcement of the Board’s order.

Oregon Steel challenges grounds on three the ALJ’s and the NLRB’s decision that 8(a)(1) (3) Oregon Steel violated sections the National Labor Relations Act1 bypassing qualified former strikers favor (3) 1. Section 8 Labor regard National Relations Act discrimination hire or provides: employment any tenure of or term or condi- (a) practice It shall be an employment encourage unfair labor for an tion of or discour- employer— age membership any organiza- (1) with, restrain, to interfere or coerce em- tion. ... ployees rights guaran- in the exercise of the title; teed in section 157 here, right a for- [of argues “[t]he Company through inde- obtained not de- does striker] mer agencies. employment pendent Fleetwood, upon technicalities....” pend an economic must reinstate “An *3 381, 547. at at 88 S.Ct. U.S. 389 unconditionally to return offers who striker has a substan work, the unless argues that the Second, Oregon Steel for refus reason business and tial on Ore- misapplied placing the law Board NLRB, 621 Corp. v. Zapex so.” ing to do that proving burden the Steel Cir.1980) (9th (citing v. NLRB 328, 333 F.2d legitimate and for not rehired strikers 48, 50-51, Lines, 93 S.Ct. U.S. 409 Int’l Van Oregon Steel reasons. business substantial (1972)); v. NLRB 76-77, 201 74, L.Ed.2d 34 pro- only the burden it had that contends Co., 304 U.S. Telegraph Mackay & Radio precluded both argument is This duction. 910-11, 904, 82 L.Ed. 345-46, 333, 58 S.Ct. precedent. Ninth Circuit Supreme Court and strikers (1939)). “Although economic 1381 Co., 389 Fleetwood Trailer In NLRB v. they enti replaced, permanently may be (1967), 543, 19 614 375, 88 L.Ed.2d U.S. S.Ct. job opens if a and when tled to reinstatement facts before Court, with the same faced the NLRB qualified.” the striker up for which by strikers in instant ease—former us the Cir.1990), (9th 688, 698 Corp., 933 F.2d Champ v. explicit positions, passed filling in —made 957, denied, 112 S.Ct. 502 U.S. rt. ce prov employer bears the the burden (1991). 416, 437 116 L.Ed.2d jus business substantial ing a the First, argues that Oregon Steel tification: make out even failed to General Counsel to rein- employer who refuses the unless its the Act because prima facie violation his can show2 action state strikers the strikers from hire former obligation to “legitimate due only applies list guilty of an justifications,” he is own employees] onto its [new when it “hires v. Great practice. NLRB unfair labor Br. Respondent/Cross-Petitioner payroll.” Trailers, 26, 34, 87 S.Ct. 388 U.S. nev 25, temporary workers were at 28. The L.Ed.2d 1027 The 18 payroll” since “own er on justification is on the proving only independent em paid employer. Id. tempo provided who ployment agencies 378, (emphasis at 545-46 389 U.S. 88 turn, in then agencies, rary workers. added). v. & 834 In NLRB Rockwood wages their temporary workers paid the (9th Cir.1987), Fleet- we followed F.2d 837 is irrelevant. This distinction fringe benefits. holding that fails when wood paid Steel fact hires others workers and striking to rehire paid tempo- who then ployment agencies, stead, the burden has their workers, change the not fact rary does legitimate and it did so for proving that at the to work hired others Steel 41; reasons. 840 - by the former jobs performed same exact NLRB, 328, F.2d Zapex Corp. v. 621 also see prefer- while prior to the strike Prods., (9th Cir.1980); Murray NLRB v. 334 unexhaust- list remained ential reinstatement Cir.1978).3 (9th Inc., 934, F.2d 939 584 of the unfair gravamen ed. This is Finally, Oregon “[t]he asserts not- Court practice alleged. As employers preclude apparently Fleetwood, contrary would to what ed 1992); 1467, (7th evidence, Randall v. 1473 Cir. F .2d 957 apparent clear or 2. "To make Cir.1982), (8th 1240, (6th NLRB, 7 Dictionary ed. n. 1379 687 1245 & prove.” Law F.2d Black's 1892, 914, added). denied, 1990) 103 S.Ct. (emphasis 461 U.S. rt. ce Solvents, (1983); Inc. v. Midwest L.Ed.2d 282 77 NLRB, F.2d Waterbary Hosp. v. 950 3. Accord Cir.1982); 763, (10th NLRB, 765-67 696 F.2d Cir.1991); 849, (2d Shipbuild Newport News 855 Int’l, Ass’n v. Air Line Pilots Air Lines Eastern 1404, NLRB, ing 738 F.2d Dry Dock Co. v. denied, Cir.1990), 722, (11th cert. F.2d 725 Cir.1984); Greyhound (4th v. S. NLRB 278, L.Ed.2d 229 112 S.Ct. 502 (1991). (5th Cir.1970); Lines, 426 F.2d Wright 854 F.2d 813-14 Tool Co. v. Cir.1988); (6th Augusta Corp., Bakery NLRB [preferential lists] accept We must the Board’s find contracting labor,” ings outside fact are “supported by sub and that charged “[t]he ALJ is not with the evidence, stantial ... even if the court might responsibility operating Oregon Steel Mills reach a different conclusion based on the profitably for the benefit employ- of its same evidence.” Sierra Publishing Co. v. Petitioner/Cross-Respondent’s NLRB, ee/owners.” Cir.1989). Br. at exaggerates the The amply supports record the Board’s find reach of the ALJ’s and the Board’s decision. ing that Oregon Steel did carry its bur den proving hiring temporary work The Board’s affirmance of the ALJ’s ers than rehiring rather former strikers was *4 decision in hardly signals this case the death cost-justified. hiring knell for the temporary workers post-strike. requires All the law is that the II employer meet its proving burden of that the temporary decision to hire Oregon was workers challenges Steel also the Board’s made for and substantial holding (a) it violated the Act remov- reasons. All the Board decided ing here three former preferen- strikers from the Oregon provide Steel failed to sufficient evi tial reinstatement list Oregon due to Steel’s carry dence to its burden on this issue. The determination that these former strikers had question broad Oregon framed Steel— substantially received equivalent employment preferential whether a elsewhere; (b) with re removing and two former instatement list can ever contract out with preferential strikers from the reinstatement side for labor —is not before us. list Oregon due to Steel’s determination that Certainly it is not the hiring ease that the these former strikers had refused the Com- temporary always workers constitutes a le pany’s offer of substantially equivalent em- gitimate and justifica ployment. Because the findings Board’s are question tion. That necessarily depends on supported by evidence, reject we individual business circumstances of each Oregon Steel’s agree contentions. We Thus, employer. question truly before Company Board that the unlawfully re- us is whether this employer Oregon Steel— moved these five prefer- from the — carried its proving hiring ential reinstatement list. temporary workers rehiring rather than for employer may An remove a former justified by mer was a and preferential striker a list substantial business reason. if the former striker “regular has found and Oregon Steel asserted that it did not re- substantially equivalent employment” else hire former strikers cheaper because it was 152(3); § where. 29 U.S.C. NLRB v. Rock temporary to hire holding labor. wood, Co., (9th Cir.1987). & 834 F.2d presented by Oregon evidence Steel in- An employer may also a remove sufficient to meet persuasion, its burden of striker he or she refuses and the Board noted offer of substantially equivalent employment. failure “to offer a accounting financial or Rockwood, 834 F.2d at 841-42. analysis” of its purported cost savings, as “The ‘substantially equivalent’ words cover as well its failure to “show a nexus between many things, including hours, pay, rate of its use of contract and the company’s working conditions, work, location of the kind economic health.” ER at 25. The Board work, seniority rights....” NLRB v. further showing relied that Ore- Carlisle Lumber 99 F.2d (1) costs, yet documents labor Cir.1938), denied, cert. (2) produce records; failed to any sometimes 83 L.Ed. 1045 pays “substantially (3) pays more” than it employees; other A significantly savings prior cost increased 21-22, its use of workers. ER at Steel contends that it was not re- quired Maxwell, to hire former strikers John B Loupe because Vasil, Michael David employ- substantially equivalent jobs had found contends n adopted Board and Jeanne Dan Hunker ment elsewhere. it offered which these workers’ their substantially equivalent that each findings were ALJ’s Wilson substantially Hunker both not Because positions. were pre-strike positions post-strike offers, Oregon job rejected the positions. and Wilson pre-strike to their equivalent them lawfully removed it asserts list. The from the Maxwell 1. John positions offered the new found that Board substantially were by Oregon Steel Steel, Maxwell held At pre- and Wilson’s Hunker’s equivalent mill journeyman aas position highly skilled agree. We positions. strike strike, obtained Maxwell After the wright. po- mill journeyman offered Wilson a trainee Both Hunker as employment clerks Stores clerks. In addition as stores foundry. sitions local wright at a weekends. nights both to work required suffered also seniority, Maxwell reduced Steel, jobs previous their At *5 hour. approximately $4.22 cut of wage anything nor Wilson worked Hunker neither sup evidence in facts These supports record weekday shift. This but the finding that Maxwell’s the Board’s port finding. See NLRB Rockwood Board’s substantially foundry not was job at the new (hold- Cir.1987) & position at Ore pre-strike to his equivalent substantially jobs not were two ing gon Steel. more on a part one was in because equivalent shift). graveyard shift” —the “onerous 2. David Vasil of the ENFORCEMENT GRANT We in full. order Board’s position at his job, unlike Vasil’s new “100 to travel Steel, required him Oregon concurring and Judge, ALARCON, Circuit Oregon, in the States time percent of the dissenting. 11. ER and Montana.” Washington, Idaho opinion. in Part II of the concur I concluded, agree, we and Board The substantially equiva job new was Part I of Vasil’s respectfully dissent I con requirement he of the opinion. lent because and his away from home tinuously travel Oregon Steel concluded that ALJ

family in Portland. Steel”) in an engaged Mills, (“Oregon Inc. failing reinstate to practice labor

unfair occupied positions to Loupe Michael 3. agencies. Rob- ployees ground and Loupe At Sikora, Oregon Vice-President Steel’s ert rotary a operated plates leveled steel the use manufacturing, testified that post- At his indoors. machine —all shear was temporary service employees of Loupe Company, Schnitzer labor position solely at to 40% its strike save motivated pay mud gear, removing required to in rain it was not outdoors because worked costs Furthermore, As I will contract workers. car bodies. benefits waste from erroneously discred- below, the ALJ Steel, Loupe’s explain new unlike testimony Mr. Sikora’s as unbelievable ited In facilities. addition provide shower did not legitimate and substantial at working conditions more onerous Supreme Court’s violation reasons seniority Schnitzer, reduced Loupe suffered Hicks, Mary’s Ctr. v. Honor St. decision potential for advancement. and a reduced 2742, 2748, 125 -U.S.-,-, 113 S.Ct. find supports Board’s amply record This (1993). L.Ed.2d sub position was not Loupe’s new ing that had also held that at position to his stantially equivalent defense, as an affirmative prove, failed Steel. ployees. that it had a and substantial busi Local represented the mainte- justification “using ness for production contract nance and workers. temporary employees perform bar September Oregon Steel em- gaining qualified employees unit work when ployed approximately 650 Sep- workers. On on the rehire list were avail tember four eighteen hundred and ruling able.” The proof ALJ’s of a members, union representing bargain- both justifica and substantial business units, ing engaged in an economic strike. tion is an affirmative defense was in violation One hundred and fourteen strikers crossed of the Court’s decision in NLRB v. picket lines and returned to work while Trailers, Inc., Great Dane 388 U.S. the strike in progress. 1792, 18 S.Ct. L.Ed.2d 1027 In Great Shortly after began, Oregon strike Trailers, the Court held that the bur implemented operational numerous persuasion den of does not shift to an em changes. cut, These wage included a reduc- ployer until the General Counsel fulfills its tion of the work force to 500 employ- about producing evidence that the em ees, freeze, hiring a transfer of the ownership ployer’s inherently contract was destructive company employee to an stock owner- activity. to union 1797- ship plan, institution of a “cross-training” finding The ALJ failed to make a program to enable its perform using conduct in variety tasks, purchase new, and the of a wages workers whose fringe benefits high-powered furnace. All employees were paid by independent employment agen paid salary eligible were made inherently cies was destructive to union ac profit sharing. Oregon *6 began Steel also tivity. The finding absence of such a is use the services of agen- service light understandable in of the fact that the perform cies to previously work by done record shows that Steel reinstated employees. changes These re- 112 stoppage strikers after the work ended. sulted in increased productivity profits Unfortunately, majority per the has been company. for the faulty analysis suaded ap ALJ’s th.e plication of relevant Court authori On June the union made an un- ty. majority The also has failed to discuss conditional offer to end the strike. The requirement the that General Counsel must strikers offered to return to their former or demonstrate that the conduct was substantially equivalent positions. In Janu-

inherently destructive before the burden of 1985, ary the union was decertified as the proof persuasion employer. shifts to the bargaining representative collective for Ore- employees. majority Because the has failed to set forth gave the facts that present- rise to the issues ended, After the strike Oregon Steel ed in opinion, Part I of its I will now set placed the names of the former strikers on a them forth may so that the reader judge preferential job reinstatement list for future which view is faithful governing princi- openings. 1987, In early company the lifted ples of labor law jurisprudence. hiring its freeze. In year, the fall of that twenty- Steel determined that it had

I. permanent job available, five openings pri- marily in shop. time, the melt ap- At this PERTINENT FACTS proximately persons one hundred remained Oregon Steel is a corporation Delaware preferential on the list. In Portland, that manufactures steel in Oregon. order to determine which former strikers it 1983, Between September 1980 and should hire positions, for the available Ore- party Steel was a bargaining to collective gon Steel held a series of orientation ses- agreements with two local unions of company the Unit- sions. The informed the strikers of America, ed Steel Workers of operational changes AFL-CIO. the imple- which it had Local 6380 covered all plant mented, office and cleri- and invited those who were interest- workers, chemists, cal laboratory obtaining ed in employment to describe their

1542 1990, 30, Board affirmed the November filling a work On out employment post-strike ALJ. General Coun- of the the decision history form. en- application for subsequently filed sel of recall- process in the to assist order In its order. forcement Lon strikers, hired Oregon Steel ing former South- consultant. Southard, management former with the interviews conducted ard II. fit they would whether to determine work environ- company’s current

into ANALYSIS ultimately hired 112 Oregon Steel ment. preferential workers of a the threat respond to employer can An not hired were who Those individuals list. during an profitability business or loss of list the reinstatement on remained replace hiring strike economic right waive their opportunity to given Tel. Mackay Radio & NLRB the strikers. pay- exchange for a treatment 345-46, 904, 910- Co., 58 employment with year of per ment of $250.00 the strike When 82 L.Ed. company. may replace ends, retain expanded 1987, Oregon Steel the fall of Id. permanently. ment services workers’ provided services for contracts its reliance enti strikers, union members As former Pursuant agencies. by temporary oc job openings when tled to reinstatement paid the agreements, these F.2d v. Rockwood & cur. NLRB amount fixed temporary service Cir.1987). (9th “[T]he by Oregon performed previously for services re permanent discharge obliged to not contracts, Or- these employees. Under for [eco room in order to make placements pay- responsible egon Steel was Prods., Murray NLRB v. strikers].” nomic vacation, benefits or health pay, sick ment of Cir.1978). Inc., F.2d temporary service for the however, must, place Oregon Steel was the time agencies. At list. preferential reinstatement on a striker ap- agencies, temporary service utilizing the 99, 103-05 Corp. v. Laidlaw *7 re- former strikers hundred one proximately 920, denied, 90 (7th Cir.1969), U.S. cert. 397 list. reinstatement preferential mained on the (1970). “If and 928, 100 L.Ed.2d 25 S.Ct. 1989, employees of the By March qualified is job the striker a for which when approximately represented agencies an offer to available, he is entitled performing becomes persons percent of the ten to five right can be defeated of reinstatement. Oregon Steel. work at ‘legitimate employer can show only if the 1989, 8, filed the NLRB February On ” justifications.’ NLRB against complaint amended second 375, 381, Co., 389 U.S. Trailer Fleetwood Oregon Steel alleged that The Board Steel. (1967) 547, 543, L.Ed.2d 614 19 88 S.Ct. (3) 8(a)(1) the sections violated had Trailers, Inc., NLRB v. Great Dane 6, (quoting July decision on his issued The ALJ Act. 34, 18 26, 87 S.Ct. vio- 388 U.S. concluded He 1989. (1) (1967)). (3) by 8(a)(1) Act L.Ed.2d sections lated employees to agency temporary service using the undisputed after is The evidence re- qualified when perform work over, into entered strike was list, preferential mained the Kelly as agencies such agreements for rein- (2) eight employees disqualifying to use Temporary Services company determined the because statement services perform to by ployed such employ- comparable they received had mill. It also uncontroverted the is at (3) elsewhere, striking the names ment had not list preferential the rein- the employees from of two entered when been exhausted company deter- the list because statement services these into contracts substan- an offer of refused mined agencies. Oregon Steel. at positions tially equivalent Producing

A. The Burden Evidence to determine employer whether the violated and the Burden Persuasion Under the Act when it employees hired six new who Dane Trailers Great had not previously worked for company the instead of six former strikers ap who had Trailers, Inc., In NLRB v. Great plied 377, for reinstatement. Id. at 88 S.Ct. 26, 1792, 87 S.Ct. L.Ed.2d at 545. No evidence was offered (1967), confronting Supreme the issue employer it had a and sub Court was whether an violates sec- justification stantial business for not reinstat 8(a)(1) (3) tions of the National Labor ing the 380, strikers. Id. at 88 S.Ct. at 546- Act, Relations showing the absence of a 47. The Board held company that the dis motivation, by refusing antiunion pay “to against criminated the strikers failing to striking employees vacation benefits accrued provide them with right their to reinstate under a terminated collective bargaining ment company when the hired nonstrikers. agreement while it announced an intention Id. We petition denied the Board’s for en pay replacements, such benefits striker forcement of the order. NLRB v. Fleetwood strikers, returning and nonstrikers who had Trailer Cir.1966), 366 F.2d 126 va been at work on during a certain date cated, 375, 543, 389 U.S. 88 S.Ct. 19 L.Ed.2d strike.” at Id. 87 S.Ct. at 1794. The Court company’s found that the conduct refusing pay striking vacation benefits to Trailer, In Fleetwood the Court cited its discriminatory and resulted opinion in Great Dane prop- Trailers for the discouragement in the participation of their osition that “unless the who refuses activity union in contravention of Act. strikers can reinstate show that his action Id. at at 1796-97. The Court ‘legitimate was due to and substantial busi- however, explained, that the mere existence justifications,’ ness he is guilty of an unfair discriminatory conduct practice.” Id. at 88 S.Ct. at 545 insufficient to demonstrate the existence of a (citations omitted). Because company violation of the Act. 87 S.Ct. at produce any failed to “legiti- Rather, inquiry requires the relevant mate and justification,” regarding an examination whether antiunion Court vacated court’s deni- bias company’s motivated the conduct. Id. al of enforcement of the Board’s order. Id. explained The Court relationship be- 380-81, 88 S.Ct. at 546-47. tween antiunion bias and the nature of the together, When read the Court’s decisions employer’s conduct as follows: in Great Dane Trailers and Fleetwood Trail- First, reasonably it can be concluded following er establish princi- labor law discriminatory conduct ples: ordinary where the situation *8 ‘inherently was destructive’ of important company’s conduct is inherently destruc- employee rights, proof no of an antiunion employee rights, tive of the normal rules motivation is needed and the Board can governing presentation the of evidence in practice find an unfair labor if even the apply. Trailers, civil cases Great Dane 388 employer evidence that introduces the con- 34, U.S. at 87 S.Ct. at 1797-98. The General duct was motivated business consider- Counsel bears the initial producing Second, ations. the adverse the if effect of prima evidence establish a to case that facie discriminatory conduct on employee employer the committed an unfair labor rights ‘comparatively slight,’ is anti- practice, must make “an affirmative union proved motivation must be sus- to showing employer’s that the discriminatory charge tain the employer the come has conduct pur- was motivated an antiunion with evidence forward of Serv., pose.” NLRB, Courier Loomis Inc. v. justifications the for 491, (9th Cir.1979) 595 F.2d 495 (emphasis conduct. added) (citations omitted). Once the General 34, added). 87 (Emphasis S.Ct. at 1798 requirement, Counsel this satisfies the bur- Trailer, In 375, Fleetwood 389 going U.S. 88 den of forward with the evidence shifts S.Ct. the Supreme required employer Court was to the to that it acted demonstrate 1544 motivation.” specific antiunion of absence rea- business and substantial

for a support In of this at 20-21. for NLRB Brief evi- produces such If the son. contention, upon relies the General Counsel producing evidence dence, of burden the Trailer, R. Inc. David Webb Fleetwood rebut to Counsel the General to back shifts (7th Cir.1989), NLRB, F.2d v. proof. The bur- impeach the or 2560, 109 denied, 956, 110 S.Ct. 495 U.S. cert. employer’s con- that persuasion of den (1990), Murray NLRB v. L.Ed.2d 743 re- by antiunion animus was motivated duct Cir.1978). (9th Prods., Inc., throughout. Counsel the General with mains support the General eases do not The cited Trailers, at 34. See 388 U.S. Dane Great of company’s use that a contention Counsel’s Wigmore on Evidence Wigmore, H. John employees consti 1981) (dis- agency temporary service (James rev. H. Chadbourn § 2489 inherently conduct. destructive tutes of between burden distinction cussing the pro- shifting of burden and the persuasion previously “[t]he noted have We duction). easily ‘inherently is not destructive’ phrase finding violations under and cases initially pro- defined Counsel General Where relatively Loomis rare.” standard are employ- that the shows evidence duces (citations Serv., at 495 595 F.2d of em- Courier inherently destructive conduct is er’s omitted). re- Inherently conduct destructive burden employer bears the rights, the ployee create “far employer’s actions quires that an i.e., going for- the burden persuasion, hinder future reaching which would effects to demonstrate ward conduct which discriminates bargaining, or legitimate and upon a conduct was based its addition, participation in and, solely upon the basis reason, activity.” Portland or union Wil- without strikes that it the ALJ acted persuade must 1331, 1334 Trailers, 534 F.2d Co. v. Great lamette animus. antiunion added). Cir.1976) In Port- (emphasis In other at 1797-98. Willamette, as following cited the we practice is land words, unfair where the inherently conduct: destructive destructive, examples must inherently un- defense, discharge participation “permanent demonstrate, affirmative as an activities, superseniority to evidence, granting of ion the em- preponderance breakers, creating and other actions by anti- strike not motivated conduct was ployer’s continuing to the obstacles future per- the burden of visible animus. Whether union (citations employee rights.” Id. exercise animus antiunion shifts suasion omitted). inherently de- examples Other Coun- General employer, or remains (1) a “silent conduct lock- structive include sel, the General Coun- depends upon whether provide fails to whereby employ- out” produced evidence has sel or timely employees before striking notice to inherently destructive was conduct er’s response the strikers uncon- in the immediate is no evidence employee rights. There to work it finding offer to return support a ditional that would record in a lockout force the strikers engaging regarding rein- Oregon Steel’s conduct favorable bargaining agreement enter into a inherent- of economic statement Transfer, fact, employer, Inc. Eads rights. as employee ly destructive of *9 (9th Cir.1993); above, Oregon Steel reinstated noted (2) a direct terminating as result ended. after the strike strikers attempt to abandon a collec- employer’s anof during the effec- bargaining agreement tive Inherently Conduct B. Destructive agreement of the without con- tive ‘date argues Oregon that The General Counsel Angeles Marine the union. Los sent of using employees on the conduct in Steel’s NLRB, 602 F.2d Co. v. Hardware per- to temporary of service payroll Cir.1979). by the eco- previously executed duties form Great principles announced “inherently destructive of is strikers nomic clearly re- Trailer and Fleetwood Section Trailers employee rights, and it violates an (1) record demonstrate that 8(a)(3) quire that ... in the of the Act even agreement temporary a agency service The ALJ testimony. discredited Sikora’s provide formerly performed by ALJ, services According to the Sikora’s “mere asser- employer’s payroll on the is inher- tion” savings of a in labor costs was insuffi- ently employer destructive conduct before an cient. The Oregon ALJ indicated that Steel by preponderance must demonstrate a presented should have a financial or account- evidence that its business decision was not analysis ing which compa- documented the by motivated antiunion animus. In the ab- ny’s position. The ALJ’s decision to discred- any sence of evidence that the use of a testimony it Sikora’s was erroneous. St. See temporary agency inherently service de- — Mary’s Hicks, U.S.-, Honor Ctr. v. structive, only an present need evi- -, 113 S.Ct. 125 L.Ed.2d 407 agreements dence it entered into such (1993) (“the determination that a defendant legitimate for a pur- and substantial business has met its production ... can pose. assessment.”). credibility involve no The record does not indicate that majority attempted has not justify agreements temporary agen- with the service the ALJ’s comply failure to decisions inherently cies rights destructive of the highest Instead, this nation’s court. it has of Oregon employees. showing Steel’s No masked analysis absence of the ALJ’s by was made the General Counsel that dem- serious misapplication by invoking the law Oregon onstrates that Steel discriminated the rule that accept “[W]e must the Board’s against any “solely upon economic striker findings they supported fact participation basis of in strikes or union ac- evidence, ... even if the court tivity.” Portland Willamette F.2d at might reach different a conclusion based Majority same evidence.” opinion at Oregon Steel did not refuse reinstate page boilerplate 1994. This recitation aof stoppage after the work had ended principle well known of law applica- has no right exercised their because to strike. tion to this case because the ALJ failed contrary, To the the record shows Ore- consider relevant legitimate evidence of a gon Steel reinstated economic strikers justification for the qualified before the list of employees was temporary use of employees because the The ALJ did not exhausted. find that Ore- ALJ considered it to be not credible. This inherently Steel’s conduct was destruc- ruling was in clear violation of the majority tive. The does not discuss this Court’s in determining instruction dispositive question. whether an has met its burden Further, matter, in this production, unlike the situa- the trier of fact must not assess Trailer, tion in pro- credibility. Hicks, Fleetwood Mary’s St. Honor Ctr. v. — duced that it legitimate at-, acted for a Thus, 113 S.Ct. at 2748. entering contrary substantial business reason in majority’s opinion, the ALJ’s into agen- finding contracts with fatally flawed because of the Byron Boyles, cies. psycholo- an accept undisputed industrial failure to as true and sub- gist, testified use of contract work- stantial evidence of a and substan- ers assisted the maintenance justification “stable tial business for the and confident work force” because it enabled use of employees. Because the “to create a erroneously buffer between assessed the credibility of permanent work force and the demands of testimony Mr. Sikora’s Sikora, the moment.” Robert temporary employees Steel’s use of the was driven Vice President of testified manufacturing the fact that its costs were reduced 40%, the use contract labor in a finding resulted did not savings approximately forty percent proving on meet its burden of *10 labor costs because company justification was not substantial must be re- business required pay agen- jected comply service if we are to with the of rule cies’ paid by workers the same benefits it that law set forth in Court St. employees. its Mary’s Honor Ctr. v. Hicks. Accordingly, appears in the record. testimony, evidence discrediting Sikora’s In satisfy the bur- did not Div. the General Counsel v. upon NLRB Vitronic relied of by (8th Cir.1979), and the Board the ALJ persuading of den Corp., Penn preponderance of evidence that evidence proposition the remarkable Id. animus. savings represents acted with antiunion cost forty percent labor and not a convenience” an “administrative en- deny petition for the Board’s I would justifica- business order that portion of its forcement tion. desist company to cease and requires the Vitronic, required eco- company disqualifying for reinstatement preferential rein- entitled nomic strikers of tem- displaced application.form to execute statement agencies. porary service they must re- acknowledged

which within 6 months applications new their original application. 562.

their persons from reinstate company refused renew who did not hiring list preferential six within requests for reinstatement their company hired new months. Id. The period limitation six month ployees after the America, UNITED STATES of expired. Id. had Plaintiff-Appellee, that the renew- found The ALJ in Vitronic “administratively most procedure was at al v. Vitronic Div. company. for the convenient” Defendant-Appellant. MELING, Joseph N.L.R.B. Corp. Penn No. 93-30238. that “[i]t also stressed The ALJ Respondent not set has be noted should Appeals, United States Court argument or forth either evidence Ninth Circuit. prompted here was procedure utilized justifica- ‘legitimate and substantial Aug. Argued and Submitted added). Eighth (emphasis Id. tion.’” 22, 1995. Decided Feb. finding that the the ALJ’s Circuit affirmed designed procedure was “Company’s renewal rights recall

to eliminate the inherently and was thus economic strikers Vitronic, 630 F.2d at 563. discriminatory.” matter, Oregon its Steel satisfied In this with the evidence going forward burden the use of services presenting proof agencies re- provided by temporary service payroll costs. duced its above, Oregon Steel satisfied As described it production evidence its burden legitimate and substantial busi- acted for a testimo- purpose through Mr. Sikora’s ness no ny. Because there in- conduct was record that destructive, Counsel herently the General Ore- required produce evidence that by an bias antiunion Steel was motivated entering contracts into Trailers, 388 agencies. Great No such at 1797-98.