Cargill, Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 24 March 2017
• Docket Number: No. 16-1930,No. 16-1565,16-1565
• Citation: 851 F.3d 841
• Parties: CARGILL, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent Cargill, Inc., Respondent v. National Labor Relations Board, Petitioner
• Court: U.S. Court of Appeals — Eighth Circuit

851 F.3d 841

CARGILL, INC., Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent

Cargill, Inc., Respondent

v.National Labor Relations Board, Petitioner

No. 16-1565

No. 16-1930

United States Court of Appeals, Eighth Circuit.

Submitted: December 15, 2016

Filed: March 24, 2017

Counsel who presented argument on behalf of the petitioner was Douglas M. Topolski, of Washington, DC. The following attorney(s) appeared on the appellant brief; Thomas L Henderson, of Memphis, TN., Audrey M. Calkins, of Memphis, TN.

Counsel who presented argument on behalf of the respondent was Kyle Albert deCant, of Washington, DC.

Before WOLLMAN and SMITH,¹ Circuit Judges, and WRIGHT,² District Judge.

WOLLMAN, Circuit Judge.

Cargill, Inc., petitions for review of an order of the National Labor Relations Board, which concluded that Cargill engaged in an unfair labor practice in violation of sections 8(a)(1) and (5), 29 U.S.C. § 158(a)(1), (5), of the National Labor Relations Act (Act), id. §§ 151-169, when it refused to bargain with the United Food and Commercial Workers International Union, Local No. 324 (the Union). The Board cross-petitions for enforcement of its order. We deny Cargill's petition for review and grant the Board's cross-petition for enforcement.

Cargill processes food-grade oil at its Fullerton plant, which is divided into two distinct areas, which we will call Side A and Side B. On Side A of the plant, eight terminal employees unload and store incoming oil that arrives at the plant by rail car or truck. The terminal employees also deliver samples of the incoming oil to a lab located on the Side A, and the oil is tested by four quality-control employees, who work in the lab. The terminal employees do not leave Side A, but two of the quality-control employees cross to Side B roughly once a week to retrieve paperwork, to escort a rabbi during his inspection of Side B, and to themselves inspect a pipeline that fills shipping containers with oil on Side B. The quality-control employees generally do not interact with the employees who work on Side B. The four employees in the maintenance department also work on Side A. Their primary responsibility is to repair equipment on both sides of the plant and to schedule work orders, but they do not interact with the employees who work on Side B except as necessary to facilitate repairs.

Side B of the plant is a single building called the packaging warehouse, which is designated for packaging and shipping of processed oil. The twenty-two packaging employees operate machines that adjust the viscosity of processed and unprocessed oil, place empty containers on a conveyor to be filled with unprocessed oil, and transport filled containers by forklift to a storage area for further handling by the shipping employees. After the packaging employees complete their tasks, the nine shipping employees load the packaged oil onto trucks, as well as schedule and monitor trucks arriving at the packaging warehouse to pick up processed and unprocessed oil. Four receiving employees also work in the packaging warehouse, one of whom coordinates the purchase of materials used by packaging employees and three of whom operate forklifts to unload packaging materials and store them in the warehouse. The packaging and receiving employees frequently interact and coordinate to accomplish their work tasks. In addition to sharing a single work location, the packaging, shipping, and receiving employees all have similar wage rates, earn the same benefits, and have a history of common supervision separate from that of employees on Side A. The employees who work in the packaging warehouse typically use the same break room, parking lot, and plant entrance, all of which are separate from those used by employees on Side A.

The Union filed a representation petition with the Board in July 2014, seeking an election to become the bargaining representative of "all full-time and regular part-time packaging, shipping, and receiving employees" at the Fullerton plant. The Union's petition sought to "exclud[e] all other employees, packaging leads, shipping leads, office clerical employees, professional employees, staffing agency employees, guards[,] and supervisors as defined in the [Act]." Packaging and shipping leads were excluded from the petitioned-for bargaining unit on the theory that they were "supervisors" under the Act. Cargill took a contrary position, arguing that the packaging and shipping leads were "employees" under the Act, not supervisors, and thus were required to be included in the bargaining unit. Cargill also argued that the maintenance, terminal, and quality-control employees shared a community of interest with the petitioned-for unit and were required to be included for the unit to be appropriate. At a hearing before the Regional Director, the Union stated that it would not proceed to an election if its petitioned-for bargaining unit was altered in any way. The Regional Director issued a decision on September 11, 2014, which held that the packaging and shipping leads were employees, not supervisors, under the Act and that the Union's petitioned-for bargaining unit was inappropriate because it specifically excluded these employees. Because the Union was unwilling to proceed to an election if its petitioned-for bargaining unit was altered, the Regional Director dismissed the Union's representation petition, finding it unnecessary to decide whether any alternate bargaining unit, i.e. , one that included the packaging and shipping leads and the maintenance, terminal, and quality-control employees, was appropriate. Neither party requested reconsideration or Board review of the Regional Director's decision.

Less than a week later, the Union filed another representation petition, this time seeking an election to become the bargaining representative of "all full-time and regular part-time packaging, shipping, and receiving employees" at the Fullerton plant. The Union sought to exclude "all other employees, maintenance employees, terminal employees, quality-control employees, staffing-agency employees, office clerical employees, guards[,] and supervisors as defined in the [Act]." Cargill filed a motion to dismiss the petition with prejudice, arguing that the petitioned-for bargaining unit was identical to the unit sought by the Union in the earlier petition and rejected by the Regional Director as inappropriate. Cargill also argued that the new petition should be dismissed because it was an improper attempt to reopen the proceedings in the first representation petition, to seek reconsideration of the Regional Director's decision in those proceedings, and to litigate issues in an untimely or piecemeal fashion. The Regional Director denied Cargill's motion to dismiss, finding that the bargaining unit petitioned for in the second representation petition was not identical to that petitioned for in the first petition. The Director also rejected Cargill's other arguments.

The Regional Director later issued a decision on the merits of the second representation petition, finding that the petitioned-for bargaining unit was appropriate and reaffirming that the shipping and packaging leads were employees and not supervisors under the Act. Cargill requested Board review of the Director's decision, arguing that the bargaining unit was inappropriate and again asserting that the second representation petition should have been dismissed for the reasons it had previously cited. The Board denied Cargill's request for review, concluding that the company had not raised any substantial issues warranting review.

A secret-ballot election by the approved bargaining unit was held at Cargill's Fullerton plant on December 4, 2014, which resulted in fourteen votes in favor of the Union and fourteen votes against the Union. The ballots cast by three employees were challenged. Cargill also filed five objections to the election, and requested a hearing before the Regional Director. As relevant here, Objection 1 reiterated Cargill's argument that the Union's second representation petition should have been dismissed. Objection 5 alleged that pro-union employees waiting in line to vote "engaged in a loud demonstration just outside the polling room" and that the Board agent overseeing the election did not investigate or stop the conduct. The Regional Director issued a Supplement Decision, summarily overruling Objection 1 as "without merit," noting that Cargill's various arguments for dismissal had been "fully litigated" and that Cargill "raise[d] nothing new that either was not or could not have been previously litigated" earlier in the proceedings. The Director ordered a hearing on Cargill's other objections, including Objection 5.

At the hearing, Cargill's election observer testified about the circumstances surrounding the election, as did two employees who voted in the election. After considering the evidence and testimony, the Hearing Officer issued a Report recommending that Cargill's objections be overruled and that the three challenged ballots be opened and counted towards the final election result. With respect to Objection 5, the Hearing Officer found that even if the testimony of Cargill's witnesses were credited, the alleged conduct did not warrant setting aside the election results. The Hearing Officer found that there was no evidence that pro-union employees waiting in line outside the polling place attempted to persuade other employees to vote for the Union; that the loud and boisterous conduct lasted only fifteen minutes; that the incidents of booing and chanting were brief, isolated, and directed at a single employee; and that there was no evidence of threats or physical violence. The Hearing Officer concluded that because the complained-of conduct "was not so disruptive or coercive that it substantially impaired the employees' exercise of free choice," overturning the election results was not warranted. Because the underlying employee conduct was...