Case Farms of North Carolina, Inc. v. N.L.R.B.
| Decision Date | 23 October 1997 |
| Docket Number | 96-1566,Nos. 96-1402,s. 96-1402 |
| Citation | 128 F.3d 841 |
| Parties | 156 L.R.R.M. (BNA) 2673, 75 Fair Empl.Prac.Cas. (BNA) 140, 134 Lab.Cas. P 10,068 CASE FARMS OF NORTH CAROLINA, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, National Poultry Workers Organizing Committee, Intervenor. The North Carolina Poultry Federation, Amicus Curiae. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CASE FARMS OF NORTH CAROLINA, INCORPORATED, Respondent. The North Carolina Poultry Federation, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: David Parks Hiller, Millisor & Nobil, Columbus, Ohio, for Petitioner. David A. Seid, National Labor Relations Board, Washington, DC, for Respondent. Laurence Edward Gold, Washington, DC, for Intervenor. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Frederick C. Havard, Supervisory Attorney, National Labor Relations Board, Washington, DC, for Respondent. Theodore T. Green, Washington, DC, for Intervenor. Kevin Sturm, Edwards, Ballard, Bishop, Sturm, Clark & Keim, P.A., Spartanburg, SC, for Amicus Curiae.
Before WILLIAMS and MICHAEL, Circuit Judges, and GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.
Petition denied and order enforced by published opinion. Judge MICHAEL wrote the opinion, in which Judge GOODWIN joined. Judge WILLIAMS wrote a separate concurring opinion.
Case Farms of North Carolina, Inc. petitions for review of a National Labor Relations Board order certifying the results of a union representation election held July 12, 1995, at the Case Farms poultry processing plant in Morganton, North Carolina. Case Farms contends that the election was irrevocably tainted by what it perceives as an appeal to "ethnocentric fears" made in a flier distributed by the National Poultry Workers Organizing Committee, Affiliated with the Laborers' International Union of North America, AFL-CIO (the Union). The Board overruled the company's objections to the election and now seeks to enforce an order requiring Case Farms to recognize and bargain with the Union. Because the Board was within its discretion in overruling Case Farms' objections, we deny the company's petition for review and enforce the Board's order.
Case Farms operates a poultry processing plant in Morganton, North Carolina. Roughly eighty percent of the 514 plant employees who were eligible to vote in the representation election were Latino, and of the Latinos, ninety percent were Guatemalan. More than seventy percent of the eligible employees were aliens.
On May 15, 1995, approximately 200 employees at the Morganton plant began a work stoppage to protest wages and working conditions. The protesting employees "form[ed] in front of the plant," where they remained for about an hour until they were asked to leave. J.A. 67. Three of these employees were arrested, however, apparently at the instance of Case Farms. On that first day the employees presented the company with a petition outlining their grievances, which included claims that Case Farms was paying low wages, refusing sufficient bathroom breaks, speeding up the chicken (production) line, threatening employees who sought medical attention, charging employees for certain equipment, and firing employees who registered complaints. The protesting employees later obtained a parade permit and had a "demonstration parade in front of the plant" on the third day, May 17, 1995. J.A. 67. The work stoppage ended on May 18.
Soon thereafter the Union began an organizing campaign at the plant. As part of its campaign, the Union distributed at least twelve different leaflets, most printed in English and Spanish. One of the leaflets read as follows:
Case Farms Doesn't Care!
This year they had three people arrested.
Two years ago they had 50 people arrested.
In Ohio, two years ago Case Farms fired the entire Amish workforce, and replaced them with Latinos.
They did this to the Amish after years of loyal service.
Because they could pay Latinos less and treat them worse.
They care more about the chickens than any of their workers.
How are we going to prevent Case Farms from treating us like the Amish?
J.A. 304 (bold in original) (hereinafter Amish flier). The Amish flier was also distributed in Spanish. 1 Other fliers decried current working conditions, compared Case Farms unfavorably with other poultry processors, and argued that the Union would improve the workers' situation.
On July 7, 1995, five days before the election, Jesyka Martinez, a Case Farms employee who was against the Union, got involved in a heated argument with union organizers. According to the organizers, whose testimony was credited by the Board's hearing officer, Martinez came out of the plant after work and took a leaflet from one of them. She then crumpled the leaflet, threw it to the ground, and pulled aside two of the union organizers. Martinez told the organizers that the Union was only there to cause problems. The organizers told Martinez they could not talk to her right then because they were handing out leaflets, but they would like to talk to her at another time. Martinez got into her car and left. Ten minutes later she returned and began yelling at the departing workers, telling them that the Union was just there to take their money. She told the workers not to take the Union leaflets and jerked leaflets out of the hands of some of the workers. One of the organizers then asked Martinez why, if she really cared about the workers, she had said the day before that the Guatemalan employees were "nothing but lazy bums" and "when they don't do the job, she had to do the job for them." J.A. 220. By this point a crowd of workers had gathered; estimates on the number range from forty to 300. Compare J.A. 230 () (estimating 40 to 50 people) with J.A. 171 (testimony of Jesyka Martinez) (claiming 270 to 300 people). Martinez denied making the comments and began to argue with some of the assembled workers. The police were eventually called to the scene and escorted Martinez to her car.
The representation election was held on July 12, 1995, and the Union won by a vote of 238 to 183. Case Farms filed seven objections to the election, and an extensive hearing was held to resolve the issues of fact relating to those objections. After the hearing, the Board's hearing officer issued a report finding "that the Union did not engage in objectionable conduct" and recommending that Case Farms' objections be overruled. J.A. 343. The Board adopted the hearing officer's findings and recommendations and certified the Union as bargaining representative for the employees at the Morganton plant.
In order to obtain judicial review of the Board's certification, Case Farms refused to bargain with the Union. The NLRB General Counsel brought an unfair labor practice claim against Case Farms based on this refusal to bargain. Case Farms defended by arguing that the Union had been improperly certified. The Board granted summary judgment against Case Farms and ordered the company to bargain. Case Farms petitioned this court for review of the Board's final order, and the Board cross-petitioned for enforcement of its order.
Although Case Farms made seven objections concerning the July 12 election, its briefs to us focus on the Union's distribution of the Amish flier. Case Farms claims that this flier was a misrepresentation designed to generate fear of an "ethnic cleansing" among the nonEnglish-speaking Latino aliens, such as the one allegedly experienced by the Amish. The Board found the flier did not constitute an inflammatory appeal to race or ethnicity, and therefore the flier provided no grounds for overturning the election. In considering this, we recognize that "[t]he Board's determination regarding the validity of an election 'is within the sound discretion of the Board' and 'should be reversed only when [the Board] has abused its discretion.' " NLRB v. VSA, Inc., 24 F.3d 588, 592 (4th Cir.1994) (quoting NLRB v. Manufacturer's Pkg. Co., 645 F.2d 223, 226 (4th Cir.1981)).
The Board's stated goal in regulating the conduct of representation elections is to "provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees." General Shoe Corp., 77 N.L.R.B. 124, 127 (1948), enforced, 192 F.2d 504 (6th Cir.1951). The Board has recognized, however, that elections "do not occur in a laboratory where controlled or artificial conditions may be established" and that, accordingly, "the actual facts [must be assessed] in the light of realistic standards of human conduct." The Liberal Market, Inc., 108 N.L.R.B. 1481, 1482 (1954). This tension between the ideal and reality is evidenced by the Board's policy towards misrepresentations in campaign messages. From 1962 to 1982 the Board changed its policy concerning misrepresentations four times. See Hollywood Ceramics Co., Inc., 140 N.L.R.B. 221, 224 (1962) (); Shopping Kart Food Market, Inc., 228 N.L.R.B. 1311, 1313, 1977 WL 8527 (1977) (); General Knit of California, Inc., 239 N.L.R.B. 619, 620, 1978 WL 8293 (1978) (); Midland Nat'l Life Ins. Co., 263 N.L.R.B. 127, 131, 1982 WL 23832 (1982) (). In Midland the Board finally settled on the standard that "we will no longer probe into the truth or falsity of ...
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