United Food and Commercial Workers Union Local 204 v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 9, 2006 Decided May 5, 2006
No. 05-1004
UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL
204,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD ,
RESPONDENT
WILLIAM P. BARRETT , ET AL .,
I NTERVENORS
Consolidated with
05-1131 and 05-1229
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.

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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).

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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

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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.

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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

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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

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she had accrued enough warnings. From this, the Board was
entitled to infer—totally independent of the Buffkin testimony,
see id. at 12 (finding that “even assuming arguendo that the cited
attorney-client communications regarding the discipline of
McMillan were privileged . . . the evidence establishes that
[Smithfield] unlawfully discharged McMillan”)—that her union
support, and not her “negative approach,” was the real reason for
her discharge.
As for Perry’s termination, Smithfield never contests that it
threatened Perry for her pro-union beliefs, arguing instead that
it would have fired Perry regardless of her union support
because she threatened a co-worker. Known around the plant as
“Granny,” Perry was sixty-one years old at the time of the
alleged threat, and the person she supposedly threatened was a
man in his early twenties. Even her supervisor, who witnessed
the purported threat, testified that he didn’t take it seriously.
The Board had ample reason to refuse to credit this flimsy
justification and instead find that Perry’s termination violated
NLRA section 8(a)(3).
The intervenors, three former Smithfield lawyers, join
Smithfield in arguing that the Board impermissibly considered
Buffkin’s testimony relating to the veracity of one of her
affidavits—testimony that intervenors argue was protected by
the attorney-client privilege. When confronted at the hearing
with an earlier affidavit that appeared to contradict her
testimony, Buffkin testified that the affidavit was not entirely
true. When pressed, she explained that even though she
repeatedly told one of Smithfield’s lawyers that portions of the
affidavit were incorrect, he told her to sign it anyway.
Concerned that Smithfield’s lawyers may have suborned
perjury, the Board referred the matter to its Investigating Officer
for investigation.

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The Board argues that we lack jurisdiction to hear
intervenors’ arguments, and we agree. Intervenors never filed
their own petition for review, instead arguing in support of
Smithfield’s petition. That petition, however, challenges the
reliance on Buffkin’s testimony only inasmuch as it relates to
the McMillan and Perry discharges. We fail to see how the
Board’s conclusion that McMillan and Perry were unlawfully
terminated aggrieves Smithfield’s former lawyers. Because
intervenors are therefore not “person[s] aggrieved by a final
order of the Board” within the meaning of the NLRA—at least
with respect to this portion of the Board’s order—we lack
jurisdiction to hear their arguments. See 29 U.S.C. § 160(f)
(“Any person aggrieved by a final order of the Board granting
or denying in whole or in part the relief sought may obtain a
review of such order . . . .”).
Intervenors insist we do have jurisdiction because the
allegedly unlawful reliance on the Buffkin testimony led directly
to the Board’s decision to refer them for disciplinary
proceedings. But the referral is no more a “final order” of the
Board than is a General Counsel’s filing of an unfair labor
practice complaint against a company, and thus cannot ground
our jurisdiction. See Turgeon v. Fed. Labor Relations Auth., 677
F.2d 937, 938-39 (D.C. Cir. 1982) (“The General Counsel of the
Board shall have final authority, on behalf of the Board, in
respect of the investigation of charges and issuance of unfair
labor practice complaints. . . . Such administrative
determinations by the General Counsel are not denominated
‘orders’ in the Act, and the Act makes no provision for their
review.” (internal quotation marks, alterations, and citation
omitted)).
Finally, both Smithfield and the Union challenge the
Board’s remedies—Smithfield because they are too severe, and
the Union because they are not severe enough. Both face a

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heavy burden: the Board’s remedial authority is “a broad
discretionary one, subject to limited judicial review,” and a
remedy “will not be disturbed unless it can be shown that the
order is a patent attempt to achieve ends other than those which
can fairly be said to effectuate the policies of the Act.”
Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216
(1964) (internal quotation marks omitted).
Smithfield argues that the Board inadequately explained
why it imposed a broad cease-and-desist order forbidding the
company from “interfering with, restraining, or coercing its
employees in the exercise of their rights under . . . the Act.”
Smithfield, 344 N.L.R.B. No. 1, at 15. But unlike in the
bargaining-order cases Smithfield relies on, see Smithfield’s Br.
54-56 (citing, among other cases, Peoples Gas Sys., Inc. v.
NLRB, 629 F.2d 35 (D.C. Cir. 1980)), we have never held that
the Board has a heightened explanatory burden when imposing
a cease-and-desist order. Rather, we have emphasized that such
an order may be appropriate if the company in question “ha[s]
a proclivity to violate the [NLRA], or has engaged in such
egregious or widespread misconduct as to demonstrate a general
disregard for the employees’ fundamental statutory rights.”
Federated Logistics & Operations v. NLRB, 400 F.3d 920, 929
(D.C. Cir. 2005) (second alteration in original) (internal
quotation marks omitted). In Federated, we upheld a broad
cease-and-desist order based on a laundry list of unfair labor
practices. Because the list of Smithfield’s violations is even
longer, we will similarly uphold the cease-and-desist order here.
Smithfield also insists that the Board had no basis for
ordering it to provide employee names and addresses to the
Union upon request. But as we explained in Federated, “it is
long established that requiring the employer to disclose
employee names and contact details to the union furthers NLRA
objectives by encouraging an informed employee electorate and

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by allowing unions the right of access to employees that
management already possesses.” Id. at 929 (internal quotation
marks omitted). We therefore cannot say that the Board’s order
“is a patent attempt to achieve ends other than those which can
fairly be said to effectuate the policies of the Act.” Fibreboard
Paper, 379 U.S. at 216 (internal quotation marks omitted).
Nor can Smithfield prevail on its claim that the Board may
not require it to notify everyone the company has employed
since 1993 of the Board’s decision. Upholding a similar
notification order in Teamsters Local 115 v. NLRB, 640 F.2d
392 (D.C. Cir. 1981), we explained that
[a]n employee who must scan the Board’s notice
hurriedly while at work, under the scrutiny of others,
will not be as able to absorb its meaning and hence to
understand his legal rights as one who reads it at home
in a more leisurely fashion. Even more demanding than
the needs of current employees are the needs of the
former employees who were the direct victims of the
Employer’s violations; posting the notice at the plant
hardly serves to communicate its contents to them.
Id. at 400-01 (internal citation and quotation marks omitted).
Here, as in Teamsters Local 115, the Board could reasonably
have concluded that a notification order was an appropriate
remedial response to the widespread unfair labor practices at the
facility.
As for the Union, it argues that the Board’s failure to grant
access remedies was error. But “[a] party challenging the
Board’s choice of remedy must show that the remedy is clearly
inadequate in light of the findings of the Board.” Teamsters
Local Union No. 639 v. NLRB, 924 F.2d 1078, 1085 (D.C. Cir.
1991) (internal quotation marks omitted). The Union has failed

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to make any such showing here; indeed, we fail to see how a
broad cease-and-desist order forbidding Smithfield from
violating the NLRA on pain of judicial contempt could be
“clearly inadequate.”
For these reasons, we deny both petitions for review and
grant the Board’s cross-application for enforcement of its order.
So ordered.

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