N.L.R.B. v. Cal-Maine Farms, Inc., CAL-MAINE

• Decision Date: 01 September 1993
• Docket Number: No. 92-4741,CAL-MAINE,92-4741
• Citation: 998 F.2d 1336
• Parties: 144 L.R.R.M. (BNA) 2113, 130 A.L.R.Fed. 617, 126 Lab.Cas. P 10,840 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.FARMS, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1336

998 F.2d 1336

144 L.R.R.M. (BNA) 2113, 130 A.L.R.Fed. 617,

126 Lab.Cas. P 10,840

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CAL-MAINE FARMS, INC., Respondent.

No. 92-4741.

United States Court of Appeals, Fifth Circuit.

Sept. 1, 1993.

Fred L. Cornnell, Jr., Aileen A. Armstrong, Deputy Associate Gen. Counsel, Fred C. Havard, NLRB, Washington, DC, for petitioner.

Kenneth E. Milam, Rebecca L. Wiggs, Watkins & Eager, Jackson, MS, for respondent.

Hugh Frank Malone, Director, NLRB Region 15, New Orleans, LA, for other interested party.

Application for Enforcement of an Order of the National Labor Relations Board.

Before KING, HIGGINBOTHAM and DeMOSS, Circuit Judges.

KING, Circuit Judge:

This case is before us on the application of the National Labor Relations Board (the "NLRB") for enforcement of its order against Cal-Maine Farms, Inc. The NLRB's order issued on April 30, 1992. We have jurisdiction under § 10(e) of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq., 160(e). After a thorough review of the record, we enter judgment enforcing the NLRB's order.

I. BACKGROUND

Cal-Maine Farms, Inc., is a large commercial agricultural operation that produces and processes hen-laid eggs in its plants located in various southern states. In a NLRB election conducted on March 30, 1988, employees of Cal-Maine Farms' 4000-acre Edwards, Mississippi plant voted 60-4 in favor of having the United Food and Commercial Workers International Union, Local 1529, AFL-CIO-CLC ("the union") represent employees. Following the NLRB's certification of the union shortly thereafter, Cal-Maine's management refused to recognize or bargain with the union. The management claimed it was justified in refusing to bargain on the ground that the workers at the Edwards plant were not "employees" within the meaning of the National Labor Relations Act ("the Act") and instead were "agricultural laborers." "Agricultural laborers" are explicitly excluded from the coverage of the Act. See 29 U.S.C. § 152(3). ¹

In May 1988, the union filed a charge with the NLRB stating that Cal-Maine had failed to recognize the union or bargain with it in good faith, as required by the Act. General Counsel for the NLRB agreed with the union, and a complaint issued in June 1988. After an administrative hearing in May 1989, the administrative law judge ("the ALJ") found that Cal-Maine violated §§ 8(a)(1) & (5) of the Act. At the time of that hearing, the rule governing the exemption of agricultural workers had been set forth by the NLRB in DeCoster Egg Farms, 223 NLRB 884, 1976 WL 6879 (1976). The so-called "single-egg test" of DeCoster "limit[ed] the exemption to those processors who deal exclusively with their own goods." Id. (emphasis added). That is, the procurement of even a single egg produced from outside sources would preclude classification of a commercial farming operation's workers as "agricultural laborers." In light of DeCoster, the ALJ defined the issue for adjudication at the May 1989 hearing as "whether [Cal-Maine's] employees at the Edwards egg packing plant processed only eggs produced at that facility after April 1, 1988, or also processed [any] eggs produced elsewhere." The ALJ found that outside eggs had been processed at Cal-Maine's Edwards plant and thus held that Cal-Maine's management had violated the Act by refusing to recognize or bargain in good faith with the union.

While Cal-Maine's appeal of the ALJ's initial decision was pending with the NLRB, the agency issued its decision in Camsco Produce Co., 297 NLRB 905, 1990 WL 122306 (Mar. 15, 1990), which overruled DeCoster to the extent it was inconsistent with the formulation of the rule announced in Camsco. Camsco held that the Act's exemption for "agricultural laborers" would be based on whether the employees in question "regularly" handle "any" amount of the products of outside producers. ² Thus, the "single egg test" of DeCoster was replaced by Camsco 's "regularity" standard. Camsco also required that the party seeking exemption from the Act--in this case, Cal-Maine--has the burden to establish that outside produce is not regularly handled by the employees seeking representation. Camsco, 297 NLRB 905. The NLRB subsequently remanded the case to the ALJ to consider the impact of the new rule in Camsco on the result in this case.

The ALJ issued his supplemental decision after a supplemental hearing in October 1990. In that decision, the ALJ reaffirmed his original position. On appeal to the NLRB, the ALJ's decision was affirmed by a vote of three to one. See Cal-Maine Farms, Inc., 307 NLRB No. 66, 1992 WL 101249, 1992 NLRB LEXIS 609 (April 30, 1992). The NLRB then applied to this court for a judgment enforcing its order.

II. STANDARD OF REVIEW

A) Legal determinations

It is the NLRB's "special duty" to apply the National Labor Relation Act's exemption for agricultural laborers "to varying fact patterns." Bayside Enterprises, Inc. v. NLRB, 429 U.S. 298, 304, 97 S.Ct. 576, 581, 50 L.Ed.2d 494 (1977). In performing that duty, the NLRB is charged with construing the Act--including its incorporation of the term "agricultural laborer" as used in the Fair Labor Standards Act--"liberally in favor of the workers" for whose protection those laws were designed, and that any exemption from the terms of those laws must be "narrowly construed." Wirtz v. Ti Ti Peat Humus Company, Inc., 373 F.2d 209, 212 (4th Cir.), cert. denied, 389 U.S. 834, 88 S.Ct. 37, 19 L.Ed.2d 94 (1967); see also NLRB v. Security Guard Service Inc., 384 F.2d 143, 147 (5th Cir.1967) (recognizing "the standard reluctance to apply [a statutory] exception broadly").

The NLRB's "expert" construction of the agricultural-laborer exemption is entitled to deference on review, because it presents a question that is "particularly unsuitable" for a reviewing court. NLRB v. Design Sciences, 573 F.2d 1103, 1104 (9th Cir.1978); see also Bayside Enterprises, 429 U.S. at 304 n. 14, 97 S.Ct. at 581 n. 14 (where the NLRB has construed the agricultural-laborer exemption, a reviewing court has a "limited" function and must give "appropriate weight" to the NLRB's judgment). Accordingly, the NLRB's determination that particular workers are statutory employees and not agricultural laborers must be upheld " 'if it has warrant in the record and a reasonable basis in law.' " Bayside Enterprises, 429 U.S. at 304 n. 14, 97 S.Ct. at 581 n. 14 (quoting NLRB v. Hearst Publications, Inc., 322 U.S. 111, 126, 64 S.Ct. 851, 858, 88 L.Ed. 1170 (1944)); see also NLRB v. Design Sciences, 573 F.2d at 1104.

B) Factual determinations

This court reviews the NLRB's factual determinations under the well-known "substantial evidence" standard announced by the Supreme Court in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Court defined substantial evidence as "more than a scintilla. It means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion." Id. at 477, 71 S.Ct. at 459. Substantial evidence "must be enough to justify, if the trial went to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Id. A reviewing court must consider the totality of evidence in the record, including "that which fairly detracts from the [NLRB's] decision." Universal Camera, 340 U.S. at 488, 71 S.Ct. at 464.

However, in determining whether the NLRB's factual findings are warranted by the record, this court will not "pass on the credibility of witnesses or reweigh the evidence." Helena Laboratories Corp. v. NLRB, 557 F.2d 1183, 1187 (5th Cir.1977). Indeed, where a case turns on witness credibility, this court will accord special deference to the NLRB's credibility findings and will overturn them "only in the most unusual of circumstances." Centre Property Management v. NLRB, 807 F.2d 1264, 1268 (5th Cir.1987); see also NLRB v. Ryder/P.I.E. Nationwide, Inc., 810 F.2d 502, 507 (5th Cir.1987) ("great deference" accorded to NLRB's credibility findings); NLRB v. Florida Medical Center, Inc., 576 F.2d 666, 671 (5th Cir.1978) (credibility findings will be upheld unless "self-contradictory").

III. ANALYSIS

There is no dispute among the parties that, as a general principle of labor law, the employees of a farming operation that processes agricultural products exclusively grown on the premises of the farm itself would not be subject to the terms of the Act. Rather, the parties dispute whether there is "substantial evidence," see Universal Camera, supra, to support the NLRB's finding that Cal-Maine "regularly" procured "any" eggs from outside sources after April 1, 1988. ³ As a collateral matter, the parties are in dispute whether the NLRB, in keeping with its prior decision in Camsco Produce Company, Inc., 297 NLRB 905, 1990 WL 122306 (1990), made sufficient findings in the instant case regarding the "regularity" of Cal-Maine's procurement of any such outside eggs.

After a thorough review of the voluminous record, we conclude both that there is substantial evidence supporting the NLRB's decision and that the agency did make proper findings regarding the "regularity" of the outside eggs handled by Cal-Maine employees. Thus, the NLRB was correct in finding that Cal-Maine violated the provisions of the Act that require employees to recognize and bargain in good faith with a NLRB-certified union. Our review here will summarize the primary pieces of evidence relied upon by the ALJ and the NLRB. ⁴ We note at the outset that the burden of proof in this case was on Cal-Maine to establish by a preponderance of the evidence that it did not regularly procure any amount of outside eggs.

1) Summary of the relevant evidence

A. Evidence of Outside Deliveries

Two of the General Counsel's witnesses testified that they observed distinctive types of dollies ⁵ and shipping stickers on the dollies which indicated that outside eggs were received after April 1,...