Smithfield Packing Co., Inc. v. N.L.R.B.

• Citation: 510 F.3d 507
• Decision Date: 05 December 2007
• Docket Number: No. 06-1541.,No. 06-1652.,06-1541.,06-1652.
• Parties: SMITHFIELD PACKING COMPANY, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. National Labor Relations Board, Petitioner, v. Smithfield Packing Company, Incorporated, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

510 F.3d 507

SMITHFIELD PACKING COMPANY, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

National Labor Relations Board, Petitioner, v. Smithfield Packing Company, Incorporated, Respondent.

No. 06-1541.

No. 06-1652.

United States Court of Appeals, Fourth Circuit.

Argued September 27, 2007.

Decided December 5, 2007.

ARGUED:

Gregory Branch Robertson, Hunton & Williams, Richmond, Virginia, for Smithfield Packing Company, Incorporated. Heather Stacy Beard, Office of the General Counsel, National Labor Relations Board, Washington, DC, for the Board.

ON BRIEF:

Kimberlee W. DeWitt, Kurt G. Larkin, Hunton & Williams, Richmond, Virginia, for Smithfield Packing Company, Incorporated. Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Steven L. Sokolow, Deputy Associate General Counsel, David Habenstreit, Supervisory Attorney, National Labor Relations Board, Washington, DC, for the Board.

Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and Raymond A. JACKSON, United States District Judge for the Eastern District of Virginia, sitting by designation.

Petition for review granted; cross-application for enforcement granted in part and denied in part by published opinion. Chief Judge WILLIAMS wrote the opinion, in which Judge DUNCAN and Judge JACKSON joined.

OPINION

WILLIAMS, Chief Judge:

Smithfield Packing Company, Incorporated ("Smithfield") petitions for review of an order of the National Labor Relations Board (the "Board") finding Smithfield in violation of § 8(a)(1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a)(1) (West 1998 & Supp.2007) (the "Act"), for threatening, beating, and falsely arresting employees of Smithfield's independently contracted cleaning services company, QSI, Inc. ("QSI"), on the morning of November 15, 2003. Because we conclude that the employees in question were not engaged in concerted protected activity within the meaning of § 7 of the Act, 29 U.S.C.A. § 157 (West 1998), we grant Smithfield's petition for review. In addition, we grant the Board's cross-application for enforcement of its order with respect to a separate § 8(a)(1) violation that Smithfield chose not to include in its petition for review.

I.

A.

Smithfield is among the largest pork products companies in the world and is well-known for its "Smithfield Ham." Among its many operations, Smithfield currently runs a large hog-slaughtering production facility in Tar Heel, North Carolina (the "Plant"). The Plant is the largest of its kind in the world and employs between 5,500 and 6,000 workers. By comparison, the largest town in Bladen County, the predominantly rural county in which the Plant is located, has a population of less than 4,000 people.

The Plant operates from roughly 8 a.m. to 11 p.m. each day with coverage provided by two production shifts. The third shift is a cleaning shift, during which time the Plant is thoroughly cleaned and then inspected by agents from the United States Department of Agriculture ("USDA"), who must certify that the facility is clean before the next day's production shifts may begin. Since the Plant's opening in 1992, Smithfield has hired independent contractors to handle these cleaning services. In July 2002, Smithfield awarded the contract for these cleaning services to QSI, which succeeded Mossburg Sanitation ("Mossburg"). During each cleaning shift, QSI staffed the Plant with between 250 and 300 workers, almost all of whom were of Hispanic descent, and many of whom spoke only Spanish. Although the cleaning shift ended at 7 a.m., as an incentive to promote efficiency, QSI permitted its employees to leave early but still receive full pay if they finished their work early.

Although Mossburg and QSI were competitors, QSI retained many of Mossburg's supervisors in similar positions. For example, QSI's Plant Manager, Manuel Plancarte, who was responsible for overseeing QSI's operations during the cleaning shift, had served as the Associate Plant Manager for Mossburg.¹

QSI's safety department, which was also present at the Plant during the cleaning shift, and was headed by Mayra Saucedo, did not report to Plancarte. Instead, the safety department reported principally to QSI's Area Manager Eduardo Guzman, Safety Director Lane Parsons, and Division Manager Owen Patterson.

By November 2003, tensions at the Plant were rising, pitting the employees and their supervisors against the safety department. QSI employees were upset with their treatment by the safety department and, from time to time, voiced their objections to their supervisors. Plancarte and another supervisor, Antonio Cruz, were particularly sympathetic to these complaints, and, in fact, Cruz would decline to discipline his employees when requested to do so by the safety department for what he deemed minor safety infractions. For example, on November 7, Saucedo requested that Cruz discipline an employee for a safety violation, but Cruz refused. In response, Saucedo telephoned Patterson and complained about Cruz's refusal to follow her discipline requests. In addition, Saucedo informed Patterson that she believed Cruz had come to work inebriated on several occasions. On one occasion when she smelled alcohol on his breath, she attempted to take Cruz for an alcohol screening test, but he refused to go.

Armed with this information, Patterson decided to terminate Cruz for his continued insubordination. Patterson contacted Guzman, who was off-site visiting one of the other five plants he was responsible for managing, and instructed him to return to Smithfield and escort Cruz from the premises. Guzman followed these instructions, terminating Cruz and removing him from the Plant. About an hour later, and apparently at Plancarte's urging in response to Cruz's termination, QSI employees began walking off the job. Saucedo telephoned Patterson to report the development; in turn, Patterson again contacted Guzman and told him to return to Smithfield and get the employees back to work. When Guzman arrived, he found a large number of employees lingering in the Plant's parking lot, and, after speaking with several employees, Guzman learned that they were upset with Cruz's dismissal and what they viewed as unfair treatment by the safety department.

At that point, Guzman removed Saucedo and her two associates from the plant and terminated them.² After this event, some employees returned to work while others went home. Because of the walkout, QSI did not finish its cleaning work that evening, and the USDA did not permit the Plant to open for production on November 8. As a result, Smithfield lost its entire production for that day.

On November 10, prior to the start of QSI's cleaning shift, around 140-150 QSI employees met in front of the Plant with Guzman and Patterson to discuss the employees' concerns.³ The employees requested: (1) a $1 per hour raise for all employees; (2) the removal of QSI's safety personnel; and (3) the reinstatement of Cruz and another recently terminated employee, Ruben Baltazar. In a hand-written agreement that was written in Spanish, Guzman and Patterson assented to these demands. It is undisputed that all three requests were carried out by QSI.

Although QSI employees returned to work without incident on November 10, Patterson, along with other senior QSI managers, decided to fire a majority of the Plant's supervisors, including Plancarte and Cruz, for their failure to support management during the events of November 7 and 10. Patterson, after consultation with Lane Parsons, decided that Patterson, Parsons, and Guzman should travel to the Plant to conduct the terminations on the morning of November 15. QSI brought in replacement supervisors to step in following the terminations.

As a courtesy, QSI informed Robert Claiborne, Smithfield's third-shift supervisor, that it would be conducting the terminations on November 15 and requested the use of a conference room. Claiborne agreed to let QSI use a conference room and then informed Danny Priest, Chief of the Smithfield Special Police,⁴ about QSI's plans. In response, Priest increased his staffing for the November 14-15 shift, placing several officers in the visitors' lobby outside of the conference room where QSI was terminating the supervisors and placing several others on standby to patrol the Plant's parking lot.

Beginning at around 3:00 a.m. on November 15, Patterson and Parsons instructed Guzman to enter the production area of the Plant and gather the supervisors who were to be terminated. QSI decided to conduct the terminations in groups: Plancarte was terminated in the first group of supervisors, and Cruz was to be terminated in the third group. At some point after the first group of supervisors were terminated but prior to his own termination, Cruz became aware that Plancarte had been terminated and that QSI was also terminating other supervisors. At the time, he had not been informed that he was about to be terminated. Nonetheless, Cruz began encouraging employees in the production area to leave their posts because Plancarte had been fired. Some employees complied and began heading towards the exits, although trial testimony was unclear why these employees left. Most indicated that they were upset that QSI was terminating people like Plancarte who were sympathetic to their complaints; however, others simply decided to follow the workers they saw heading off the job. Cruz himself began running through the Plant and shouting at the employees to leave their posts.

At this point, events are hotly disputed. For our purposes, it is sufficient to note that a large number of QSI's employees moved, in a somewhat chaotic fashion, from the production areas through a set of double steel doors to the employee lobby, and then into the parking lot, where they congregated. After some time, the employees either...