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

506 F.3d 1078, 378 U.S. App. D.C. 325, 182 L.R.R.M. (BNA) 3185, 2007 U.S. App. LEXIS 25759
CourtCourt of Appeals for the D.C. Circuit
DecidedNovember 6, 2007
Docket06-1318
StatusPublished
Cited by9 cases

This text of 506 F.3d 1078 (United Food & Commercial Workers Union Local 204 v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United Food & Commercial Workers Union Local 204 v. National Labor Relations Board, 506 F.3d 1078, 378 U.S. App. D.C. 325, 182 L.R.R.M. (BNA) 3185, 2007 U.S. App. LEXIS 25759 (D.C. Cir. 2007).

Opinion

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Following a union’s unsuccessful effort to organize a plant, the National Labor Relations Board found that over the course of the union’s campaign the employer committed several unfair labor practices in violation of the National Labor Relations Act. Although the employer contests none of the Board’s conclusions, the union challenges the Board’s decision to dismiss two of its claims: (1) that statements by high-level company management constituted unlawful threats of plant closure; and (2) *1080 that the company’s decision to train a security camera on union organizers created an illegal impression of surveillance. Given the significant deference we owe the Board’s factual findings, we deny the union’s petition for review on both claims. The union also challenges the adequacy of the Board’s remedies, but because the union failed to present the issue to the Board, we lack jurisdiction over that claim.

I.

This case arises out of the United Food and Commercial Workers’ (UFCW) March 1999 attempt to organize a Smithfield Foods meatpacking plant in Wilson, North Carolina. After a three-month campaign, the union lost the election. The union filed a series of unfair labor practice charges against Smithfield, alleging that the company’s antiunion campaign had tainted the election. An administrative law judge found that Smithfield had committed several unfair labor practices in violation of sections 8(a)(1), (3), and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3), (5). See Smithfield Foods, Inc., 347 N.L.R.B. No. 109, at 38 (Aug. 31, 2006) (finding that Smithfield unlawfully discharged employees, engaged in interrogation, and threatened job, pay, and benefit losses as a result of employee union activities, among other violations). Relevant to this appeal, the ALJ determined that Smithfield executives violated section 8(a)(1) by threatening to close the company’s Wilson plant if workers unionized and by training the facility’s security camera on union organizers as they distributed handbills near the plant’s entrance. Finding a widespread pattern of “repeated and pervasive unfair labor practices of a hallmark nature,” Smithfield, 347 N.L.R.B. No. 109, at 37, the ALJ recommended that the Board order Smithfield to bargain with the UFCW pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575, 610, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) (upholding the Board’s authority to issue a bargaining order when an employer’s unfair labor practices “have made the holding of a fair election unlikely” or “have in fact undermined a union’s majority and caused an election to be set aside”).

On review, although the Board upheld most of the ALJ’s findings, it found for Smithfield on the issues of threatened plant closure and video surveillance. The Board also declined to issue a bargaining order, instead mandating a new election along with several “extraordinary remedies” to ensure the fairness of the second election. Smithfield, 347 N.L.R.B. No. 109, at 8. The union now seeks review of the Board’s dismissal of the unfair labor practice charges and challenges the Board’s remedies as inadequate.

We will uphold the Board’s dismissal of an unfair labor practice charge “unless its findings are unsupported by substantial evidence in the record considered as a whole, or unless the Board ‘acted arbitrarily or otherwise erred in applying established law to facts.’ ” Gen. Elec. Co. v. NLRB, 117 F.3d 627, 630 (D.C.Cir.1997) (quoting Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1358 (D.C.Cir.1997)). Under this deferential standard of review, we will reverse the Board’s factual determinations “only when the record is so compelling that no reasonable factfinder could fail to find to the contrary.” Resort Nursing Home v. NLRB, 389 F.3d 1262, 1270 (D.C.Cir.2004). We will not “displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). With this limited role in mind, we consider each of the union’s challenges.

*1081 II.

NLRA section 7 guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. The NLRA safeguards these rights through section 8(a)(1), which makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7].” Id. § 158(a)(1). Section 8(c), however, protects employers’ First Amendment rights to convey their views on unionization to employees so long as such expression “contains no threat of reprisal or force or promise of benefit.” Id. § 158(c).

The Supreme Court addressed the relationship between sections 8(a)(1) and 8(c) at length in Gissel, explaining:

[A]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment.

395 U.S. at 618, 89 S.Ct. 1918 (citations omitted). We have often applied Gissel in situations involving allegedly unlawful employer speech. In Crown Cork & Seal Co. v. NLRB, 36 F.3d 1130

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Bluebook (online)
506 F.3d 1078, 378 U.S. App. D.C. 325, 182 L.R.R.M. (BNA) 3185, 2007 U.S. App. LEXIS 25759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-food-commercial-workers-union-local-204-v-national-labor-cadc-2007.