United Food and Commercial Workers v. N.L.R.B., 05-1004.

• Decision Date: 05 May 2006
• Docket Number: No. 05-1229.,No. 05-1004.,No. 05-1131.,05-1004.,05-1131.,05-1229.
• Citation: 447 F.3d 821
• Parties: UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 204, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent William P. Barrett, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

447 F.3d 821

UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 204, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent

William P. Barrett, et al., Intervenors.

No. 05-1004.

No. 05-1131.

No. 05-1229.

United States Court of Appeals, District of Columbia Circuit.

Argued March 9, 2006.

Decided May 5, 2006.

COPYRIGHT MATERIAL OMITTED

On Petitions for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Renee L. Bowser argued the cause and filed the briefs for petitioner United Food and Commercial Workers Union Local 204.

Curtis L. Mack argued the cause for petitioner Smithfield Packing Company, Inc. With him on the briefs was E. Duncan Getchell, Jr.

Usha Dheenan, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Ronald Meisburg, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Fred B. Jacob, Supervisory Attorney.

Michael A. Carvin argued the cause for intervenors. With him on the briefs were Julia M. Broas and Willis J. Goldsmith.

Before: RANDOLPH and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

PER CURIAM.

In 1992, the Smithfield Packing Company opened a large pork processing plant in Tar Heel, North Carolina. Shortly after the plant opened, the United Food and Commercial Workers Union took steps to organize the plant's employees. Those efforts culminated in two elections, one in 1994 and the other in 1997, both of which the Union lost. From the outset, Smithfield was exceptionally hostile to union organizing activities at the Tar Heel plant. According to National Labor Relations Board findings unchallenged here, the company threatened to fire employees who voted for the Union, to freeze wages and shut the plant if the employees unionized, and to discipline employees who engaged in union activity. It also interrogated employees about their union support, confiscated union materials, and videotaped and otherwise spied on its employees' union activities. See Smithfield Packing Co., Inc., 344 N.L.R.B. No. 1, at 14-15 (Dec. 16, 2004).

The Board's General Counsel filed several complaints against Smithfield, and an ALJ issued a report in December 2000. Over a partial dissent, the Board adopted nearly all of the ALJ's recommended findings and most of his recommended remedies, including a broad cease-and-desist order forbidding Smithfield from violating the National Labor Relations Act (NLRA). Id. at 15-16. Smithfield and the Union now petition for review of the Board's order, and three of Smithfield's former lawyers have intervened in support of Smithfield's petition. The Board has filed a cross-application for enforcement.

"[F]indings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall . . . be conclusive." 29 U.S.C. § 160(f). What's more, "we do not reverse the Board's adoption of an ALJ's credibility determinations unless . . . those determinations are hopelessly incredible, self-contradictory, or patently unsupportable." Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 28 (D.C.Cir.1998) (internal quotation marks omitted).

Before reaching the merits, we observe that the Board is entitled to enforcement of all unchallenged portions of its order, and we therefore grant its petition as to those portions. See Grondorf, Field, Black & Co. v. NLRB, 107 F.3d 882, 885 (D.C.Cir.1997).

We first address Smithfield's argument that the Board lacked substantial evidence to find that the company contravened NLRA section 8(a)(1) in establishing an overly broad no-solicitation/no-distribution policy. The Board's conclusion rests on testimony that Smithfield posted a sign outside the Tar Heel facility's parking lot describing an unlawfully broad policy. Although Smithfield insists that the Board's finding cannot stand because the General Counsel presented no evidence that a Smithfield employee actually saw the sign, it never presented this argument to the Board and we will therefore not consider it. See 29 U.S.C. § 160(e) ("No objection that has not been urged before the Board. . . shall be considered by the court. . . ."). Smithfield also argues that no reasonable employee would have believed the concededly unlawful policy on the sign trumped the lawful policy the company published in its employee handbook. But the Board reasonably found that, in the atmosphere of intimidation and coercion under which Smithfield employees operated employees might well have believed that the parking-lot sign stated Smithfield's real no-solicitation/no-distribution policy.

Second, Smithfield challenges the Board's determination that it unlawfully coerced Fred McDonald, a known union supporter, when McDonald's supervisor approached him and said, "Why do you all guys want a Union, the Union can't do anything for you but cause trouble between the workers and the Company." Smithfield, 344 N.L.R.B. No. 1, at 5. Relying on its earlier decision in Action Auto Stores, Inc., 298 N.L.R.B. 875 (1990), the Board concluded that "the employer's conduct put the employee in a defensive posture because the employer, which controlled his livelihood, did not approve of his union activity." Smithfield, 344 N.L.R.B. No. 1, at 5. Smithfield contends that Action Auto Stores "does not apply to the record evidence" because the evidence of coercion was much stronger there than here. Smithfield's Br. 50. Yet the Action Auto Stores principle—that an employer's statement that union support would "cause trouble" can put an employee in a "defensive posture" and be unduly coercive under the right circumstances, see Action Auto Stores, 298 N.L.R.B. at 901-02—carries over notwithstanding the factual differences between the two cases. Given the intense and widespread coercion prevalent at the Tar Heel facility, the Board's reliance on Action Auto Stores was therefore proper.

Third, Smithfield argues that the Board lacked substantial evidence to conclude that it harassed and coerced Chris Council, a known union supporter. Although Council's supervisor, James Hargrove, ordered him to stamp hogs with a "Vote No" stamp, Smithfield insists that "the assignment did not unlawfully coerce Council to participate in Smithfield's anti-union effort" because Hargrove never "tricked" Council. Smithfield's Br. 53. But we think the Board could have reasonably concluded that Council's supervisor ordered him to engage in campaign activities in which Council never meant to participate; this amounts to coercion, plain and simple, whether or not Council was ever "tricked."

Fourth, Smithfield claims that the Board lacked substantial evidence to find the company violated NLRA section 8(a)(3) by discharging Rayshawn Ward, Lawanna Johnson, Margo McMillan, and Ada Perry. See 29 U.S.C. § 158(a)(3) ("It shall be an unfair labor practice for an employer . . . by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . ."). Reviewing the record, we find substantial evidence to support each decision.

When Rayshawn Ward acted as a union observer at the 1997 union election, a fight broke out after the ballots were counted. Although Ward claimed he never hit anyone, law-enforcement officials arrested him. Ward testified that three days after the fight, a Smithfield manager named Larry Johnson told him "I'm just tired of this Union shit and I'm ready to get my company back where it belong [sic]." J.A. 163. The ALJ credited this testimony, and the Board adopted his findings. Ward was fired two days later, ostensibly for his involvement in the fight. Because Johnson's statement exhibits powerful anti-union animus, even standing alone it provides substantial evidence for the Board's conclusion that Ward would not have been fired but for his union support. This is particularly so given that "[w]e are even more deferential when reviewing the Board's conclusions regarding discriminatory motive, because most evidence of motive is circumstantial." Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 734 (D.C.Cir.2000).

Similarly, the Board refused to credit Larry Johnson's testimony that he fired Lawanna Johnson for an attendance violation. Instead, it credited testimony that Larry threatened Lawanna with termination if she encouraged people to vote for the Union—and that Larry then fired Lawanna just three days later. Without more, the Board could reasonably have concluded that this supported a finding of anti-union animus. Although Lawanna had signed a last-chance agreement making her employment contingent on perfect attendance, the Board found that Smithfield had sometimes been lenient with other employees on "final warnings" for repeated attendance violations. See Smithfield, 344 N.L.R.B. No. 1, at 7; see also J.A. 257-59 (employee on final warning stayed home because God told her to, and instead of firing her, Smithfield gave her a "final final warning"). Substantial evidence therefore supports the Board's conclusion that Smithfield fired Lawanna for her union support, not for her attendance violation.

In attacking the findings of unlawful discharge against McMillan and Perry, Smithfield argues that the Board improperly relied on privileged testimony from a former manager, Sherri Buffkin. Yet even without Buffkin's testimony, substantial evidence supports the Board's conclusion that McMillan and Perry were fired for their union support. Shortly after Smithfield unlawfully interrogated McMillan about her position on unionization, McMillan was fired for her "continued negative approach." Smithfield, 344 N.L.R.B. No. 1, at 104. But according to McMillan's supervisor, Smithfield failed to follow its progressive discipline policy, instead firing her before she had accrued enough warnings. From this, the...