Sanderson Farms Inc. v. National Labor Relations Board

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this opinion should not be published and is not precedent except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.

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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

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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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