Sanderson Farms Inc. v. National Labor Relations Board , 112 F. App'x 976 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 25, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 03-60947
_____________________
SANDERSON FARMS INC, Production Division
Petitioner-Cross-Respondent
v.
NATIONAL LABOR RELATIONS BOARD
Respondent-Cross-Petitioner
_________________________________________________________________
Petition for Review and Cross-Application for Enforcement of an
Order of the National Labor Relations Board
Agency No. 15-CA-16450
_________________________________________________________________
Before KING, Chief Judge, and SMITH and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
Sanderson Farms, Inc. (“Sanderson”), Petitioner-Cross-
Respondent, was the subject of an unfair labor practices
complaint brought by the union representing the employees at one
of its facilities. Upon investigation, the General Counsel of
the National Labor Relations Board (“NLRB” or “Board”),
Respondent-Cross-Petitioner, filed a complaint against Sanderson
alleging violations of the National Labor Relations Act (“NLRA”
or “Act”). Following a hearing, an Administrative Law Judge
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
(“ALJ”) found Sanderson liable and issued an order directing
Sanderson to take certain remedial measures. Sanderson appealed
the decision to the full Board, which affirmed the ALJ’s
decision. Sanderson now petitions for review of the Board’s
decision. The Board cross-petitions for enforcement of its
order. We DENY the petition for review and GRANT the cross-
application for enforcement.
I. FACTUAL BACKGROUND
Sanderson is a processor and distributor of poultry products
with facilities throughout Mississippi and Texas. One of its
facilities is in Magnolia, Mississippi. In July 2001, Bill
Noland, a truck driver at the Magnolia facility, along with
several co-workers, contacted the United Food and Commercial
Workers Union, Local 1529 (“Union”) about beginning an
organization campaign at the facility. The organization efforts
took place throughout July and August. On September 13, 2001,
the NLRB supervised an election in which the employees at the
Magnolia facility voted 45 to 3 to select the Union as their
collective-bargaining representative.
On October 17, 2001, Keith Wicker, a former driver for
Sanderson who had been recently rehired, met with Personnel
Supervisor Derek Fletcher to fill out some paperwork relating to
his re-employment. During this meeting, Fletcher and Wicker
2
discussed the recent union election.1 Fletcher asked Wicker
whether he was for or against the Union. Wicker replied that he
was indifferent. Fletcher told him that if he did not want to
become involved with the Union, he should stay away from Noland.
At some point in that same month, Scott Boyd, another former
truck driver, spoke with Lee Gill, a supervisor at the facility,
about returning to work. Boyd was particularly concerned that
his thirteen traffic tickets would bar his reemployment. Gill
responded to Boyd’s inquiry by discussing the problems Sanderson
was having with the Union. Boyd made clear that he was only
concerned with getting a job and was not interested in the Union.
Gill responded to this statement by telling Boyd to report for
work the following Monday.
Once he began work, Boyd started complaining about the
system Sanderson used to assign work. Soon thereafter, Boyd met
with Fletcher and Bill Putnam, the Division Manager, to air his
grievances. Putnam told Boyd that the problems were related to
the Union and that Sanderson was trying to “weed out [the]
troublemakers” who were causing the problems.
On October 29, 2001, six-and-a-half hours into his eight
hour shift, Noland was called back to the plant by Fred Jones,
1
The exact nature of this conversation was disputed at
trial. Fletcher maintains that Wicker initiated the conversation
about the Union, while Wicker claims that Fletcher brought up the
subject. The ALJ determined that Wicker was more credible and
chose to credit his testimony. This credibility determination is
one of several we are called upon to review in this appeal.
3
the facility’s dispatcher. Jones informed Noland that his
regular truck was scheduled for maintenance work. Noland
requested another truck so that he could complete his work day.
Noland testified that Jones told him truck number 4155 was
available but “would not pull.” This meant that it would not be
able to haul a fully-loaded trailer. After inspecting truck 4155
and “weighing the odds,” Noland returned to Jones rather than
taking his chances with the notoriously undependable truck 4155.
According to Noland, Jones gave him permission to leave work for
the day since no equipment was available. Noland then clocked
out and went home.
For the next week, Noland reported to work as usual without
incident. However, when Noland reported to work on November 6,
his timecard had been pulled. Noland went to Fletcher’s office
to find out what had happened. They were soon joined by Putnam
and Gill. Noland was informed that by leaving work early the
previous Tuesday, he had incurred an unexcused absence, his fifth
within six months. He was also reminded of the company policy
that mandates an employee’s discharge for five unexcused absences
within any rolling six-month period. Noland told his supervisors
that no equipment was available for him at the end of his shift
on October 29 and that Jones had given him permission to leave
for the day. Gill told Noland that they would take the day to
check on the status of truck 4155 and would let Noland know where
he stood by the end of the day. Later in the day, Noland was
4
called back into the office. Citing the five unexcused absences,
Fletcher told Noland that his employment was terminated.
II. PROCEDURAL BACKGROUND
Following Noland’s dismissal, the Union filed an unfair
labor practices complaint with the NLRB. This prompted the
Board’s General Counsel to bring a formal complaint against
Sanderson. The complaint alleged that Noland’s termination, as
well as management’s separate conversations with Wicker and Boyd,
violated § 8(a)(1) & (3) of the NLRA. 29 U.S.C. § 158(a)(1) &
(3) (1998). Section 8(a)(1) states that employers may not
“interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed” by the Act. Section 8(a)(3) states that
employers may not discriminate “in regard to hire or tenure of
employment . . . to encourage or discourage membership in any
[union].”
On September 16 and 17, 2002, the charges against Sanderson
were heard in a trial held before the ALJ. The ALJ found that
the October 17 meeting between Wicker and Fletcher constituted a
coercive interrogation in violation of § 8(a)(1). The ALJ also
found that the meeting between Boyd, Fletcher, and Putnam in late
October constituted a violation of § 8(a)(1). The ALJ held that
the threat to weed out troublemakers made during this meeting was
a threat to discharge employees who supported the Union.
Finally, the ALJ determined that Noland’s discharge violated
5
§ 8(a)(3), since the attendance policy was not consistently
enforced. The ALJ issued a recommended order that forced
Sanderson to reinstate Noland with backpay. The ALJ also ordered
Sanderson to cease-and-desist from further violations of the Act.
Finally, Sanderson was ordered to post a notice at the Magnolia
facility informing employees of their rights under the Act and
that Sanderson had violated those rights. In coming to these
conclusions, the ALJ made specific credibility determinations
crediting the testimony of several employees over the testimony
of Sanderson’s management.
Dissatisfied with the ALJ’s findings, Sanderson appealed the
decision to the Board. The Board largely affirmed the ALJ’s
conclusions. The Board agreed with the ALJ that management’s
conversations with Wicker and Boyd constituted violations of
§ 8(a)(1). It also agreed that Noland’s discharge constituted a
violation of § 8(a)(3). However, its rationale on this charge
differed slightly from that of the ALJ. Rather than focusing on
disparate treatment, the Board instead found that Noland did not
incur a fifth unexcused absence on October 29, 2001. As such, he
was wrongfully terminated. With minor modifications, the full
Board issued the recommended order. Sanderson now petitions for
review of the Board’s decision. The Board cross-petitions for
enforcement of its order.
III. STANDARD OF REVIEW
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Section 10(e) of the NLRA states that on appeal, the Board’s
factual determinations are conclusive “if supported by
substantial evidence on the record considered as a whole.”
29 U.S.C. § 160(e) (1994). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Universal Camera Corp. v. NLRB, 340
U.S. 474, 477 (1951) (quoting Consolidated Edison Co. v. Labor
Board, 305 U.S. 197, 229 (1938)). Beyond purely factual
determinations, this deference also extends to the Board’s
application of law to fact. Valmont Indus., Inc. v. NLRB, 244
F.3d 454, 463 (5th Cir. 2001) (“The standard of review of the
Board's findings of fact and application of the law is
deferential, as both parties recognize.”). This means that a
reviewing court may not displace the Board’s choice between two
fairly conflicting views, even if the court “would justifiably
have made a different choice had the matter been before it de
novo.” Universal Camera, 340 U.S. at 488.
This generally deferential stance clearly applies to the two
main determinations we are called upon to review in this case.
This court has made clear that when an ALJ faces contradictory
testimony, his credibility determinations will generally not be
disturbed. NLRB v. Brookwood Furniture, 701 F.2d 452, 456 (5th
Cir. 1983) (“Particularly where, as here, the record is fraught
with conflicting testimony, requiring essential credibility
determinations to be made, the trier of fact's conclusions must
7
be accorded particular deference.”). Such determinations will
only be disturbed where they are inherently unreasonable or self-
contradictory. NLRB v. Delta Gas Inc., 840 F.2d 309, 311 (5th
Cir. 1988).
This deference also extends to a Board determination that an
interrogation or threat was coercive. This court has previously
stated that “[b]ecause the question whether [a] coercive
interrogation has occurred is one of fact, its primary
determination rests with the Board, and we accord great deference
to that body's findings.” NLRB v. Great Western Coca-Cola
Bottling Co., 740 F.2d 398, 404 (5th Cir. 1984) (internal
quotation marks omitted).
IV. ANALYSIS.
A. Interrogation of Scott Boyd as a violation of NLRA
§ 8(a)(1)
In its brief, the Board urges us to affirm summarily its
finding that Putnam’s statement to Boyd about weeding out
troublemakers was an unlawful threat made in violation of
§ 8(a)(1). The Board argues that Sanderson waived the issue on
appeal because it failed in its original brief to address the
conversation as it relates to liability under § 8(a)(1). This
circuit has made clear that when a company does not challenge in
its brief the NLRB’s findings of a violation of § 8(a)(1), that
issue is waived on appeal and the Board is entitled to summary
enforcement. NLRB v. Brookshire Grocery Co., 919 F.2d 359, 363
8
n.2 (5th Cir. 1990); NLRB v. Jacob E. Decker & Sons, 569 F.2d
357, 360 (5th Cir. 1978).
In its original brief, Sanderson clearly does discuss
Putnam’s comment about weeding out troublemakers. However, it
only discusses that comment as it relates to the issue of anti-
union animus relevant for proving a § 8(a)(3) violation. Nowhere
does it contest the Board’s finding that Putnam’s comment was an
unlawful threat. Accordingly, that portion of the Board’s order
dealing with § 8(a)(1) liability arising from Putnam’s comment is
summarily enforced.
B. Interrogation of Keith Wicker as a violation of NLRA
§ 8(a)(1)
The NLRB found that the meeting on October 17, 2001 between
Wicker and Fletcher was a coercive interrogation. Before
considering whether the meeting was coercive, we must deal first
with the threshold inquiry of whether it was an interrogation.
Sanderson claims that because it was Wicker, and not Fletcher,
who brought up the issue of the Union, it is not fair to
categorize the conversation as an interrogation. This argument
is unavailing. During the trial, there was conflicting testimony
as to whether Wicker or Fletcher broached the issue of the Union.
Both men claimed that the other first raised the issue. The ALJ
explicitly found Wicker’s testimony more credible. Absent
inherent unreasonableness, which is not present here, we will not
question that credibility determination. We will take it as
9
given that Fletcher was the one who first discussed the Union.
Accordingly, the October 17 meeting did constitute an
interrogation.
To determine whether an interrogation was coercive, courts
in the Fifth Circuit follow the Bourne test. Bourne v. NLRB, 332
F.2d 47 (2d Cir. 1964); see also NLRB v. Brookwood Furniture, 709
F.2d 452, 460-61 (5th Cir. 1983) (applying the Bourne factors in
the Fifth Circuit). This test sets out eight indicia of
coercion: (1) the history of the employer’s attitude towards its
employees; (2)the nature of the information sought; (3) the rank
of the questioner in the employer’s hierarchy; (4) the place and
manner of the conversation; (5) the truthfulness of the
employee’s response; (6) whether the employer had a valid purpose
in obtaining the information sought; (7) whether a valid purpose,
if existent, was communicated to the employee; and (8) whether
the employer assured the employee that no reprisals would be
forthcoming. Bourne, 332 F.2d at 48. These factors do not set
out a strict test. Rather, they are merely issues to consider in
assessing the totality of the circumstances.
Even a cursory analysis of these factors makes clear that
there was substantial evidence to support the Board’s conclusion.
Regarding factor two, the information Fletcher sought would have
allowed him to know whether Wicker would be disposed toward
exercising his rights under the Act. This would give Fletcher
direct knowledge as to whether Wicker would be amenable to
10
coercion. As for factor three, Fletcher was a senior member of
the management team at the Magnolia facility. Fletcher was also
questioning Wicker in the very same office in which employment
decisions were made. This makes the place and manner of the
conversation, factor four, highly suspicious. Sanderson claims
that the timing of the conversation undercuts the claims of
coercion. Since Wicker had already been hired, Sanderson argues,
there was no reason for him to feel threatened. However, he
could have reasonably believed that his chances of keeping his
new job would be impacted by his potential union activities.
Regarding factors six and seven, it is clear that there was
no valid purpose for the conversation. Sanderson claims that
Fletcher was merely trying to be helpful in letting Wicker know
that if he wanted to avoid the Union, he should stay away from
Noland. Perhaps if Wicker had explicitly stated that he wanted
to avoid becoming involved in the Union, this rationale would
make sense. However, the fact that it was unsolicited makes it
highly suspicious. Furthermore, in obstinately refusing to
accept the determination that Fletcher first broached the topic
of the Union, Sanderson has failed to proffer any reason, valid
or invalid, as to why the topic of the Union should have ever
come up in the first place. Finally, with respect to factor
eight, the warning to stay away from Noland could reasonably be
interpreted as a veiled threat to stay away from the Union. This
11
does nothing at all to assure the employee that reprisals will
not be forthcoming.
We are convinced that the evidence described above,
discussed at length in both the ALJ’s and the full Board’s
opinions, is more than sufficient to show that the totality of
the circumstances made the October 17 meeting a coercive
interrogation. Given our deferential standard of review, we have
no justification for disturbing the Board’s determination that
the meeting constituted a coercive interrogation in violation of
§ 8(a)(1) of the Act.
C. Discharge of Bill Noland as a violation of NLRA
§ 8(a)(3).
It is unquestioned that an employer violates § 8(a)(3) when
it discharges an employee because of his union activity. NLRB v.
Transp. Mgmt. Corp., 462 U.S. 393, 397-98, 401 (1983); NLRB v.
Delta Gas, Inc., 840 F.2d 309, 311 (5th Cir. 1988). To establish
a prima facie case of retaliatory discharge, the Board must
provide evidence that would support a reasonable inference that
the employer’s adverse employment action was motivated by anti-
union animus. Transp. Mgmt. Corp., 462 U.S. at 400; Delta Gas,
840 F.2d at 311. In this case, Sanderson’s two § 8(a)(1)
violations are more than adequate to show anti-union animus.
Putnam’s comment about weeding out troublemakers supports an
inference that Sanderson wished to rid itself of the Union’s
leaders. Fletcher’s warning to Boyd to stay away from Noland
12
supports an inference that Sanderson viewed Noland as one of the
Union’s leaders.
Once the prima facie case has been made, an employer can
rebut that case by demonstrating that the adverse employment
action would have taken place irrespective of union activity.
Transp. Mgmt. Corp., 462 U.S. at 401-03; Delta Gas, 840 F.2d at
311. In citing its attendance policy, this is exactly what
Sanderson has done. However, where this legitimate reason is
shown to be a pretext, the prima facie case has not been
rebutted. Noland claims that on October 29, dispatcher Jones
told him he could leave work early since no equipment was
available for Noland to use. If this did indeed occur, then
Noland’s absence on that morning would have been excused. Since
he did not violate the attendance policy, his discharge must then
be deemed pretextual. Sanderson and Jones deny that Noland was
given permission to leave early. They also cite evidence tending
to show that truck 4155 was available and operational on the
morning of October 29. Sanderson’s emphasis on the availability
of truck 4155 is beside the point. If Jones told Noland that it
was nonoperational and that Noland could leave, Noland was
entitled to rely on Jones. The critical inquiry is what Jones
said to Noland on that morning. On this matter, there is
conflicting testimony. Based on what he heard at the trial, the
ALJ determined that Noland was more credible and thus accepted
his account of what happened on that morning. As with Wicker’s
13
testimony, absent inherent unreasonableness, we refuse to disturb
the ALJ’s basic credibility determination. For this reason, we
find that substantial evidence supported the Board’s conclusion
that Noland did not incur a fifth unexcused absence and was
therefore wrongfully terminated and its ultimate conclusion that
Sanderson’s dismissal of Noland violated § 8(a)(3).
V. CONCLUSION
For the foregoing reasons, we DENY Sanderson’s petition for
review and ENFORCE the Board’s order.
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