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Cargill, Inc. v. National Labor Relations Board

United States Court of Appeals, Eighth Circuit

March 24, 2017

Cargill, Inc. Petitioner
v.
National Labor Relations Board Respondent Cargill, Inc. Respondent
v.
National Labor Relations Board Petitioner National Labor Relations Board

          Submitted: December 15, 2016

          Before WOLLMAN and SMITH, [1] Circuit Judges, and WRIGHT, [2] District Judge.

          WOLLMAN, Circuit Judge.

         Cargill, Inc., petitions for review of an order of the National Labor Relations Board, which concluded that Cargill engaged in an unfair labor practice in violation of sections 8(a)(1) and (5), 29 U.S.C. § 158(a)(1), (5), of the National Labor Relations Act (Act), id. §§ 151-169, when it refused to bargain with the United Food and Commercial Workers International Union, Local No. 324 (the Union). The Board cross-petitions for enforcement of its order. We deny Cargill's petition for review and grant the Board's cross-petition for enforcement.

         Cargill processes food-grade oil at its Fullerton plant, which is divided into two distinct areas, which we will call Side A and Side B. On Side A of the plant, eight terminal employees unload and store incoming oil that arrives at the plant by rail car or truck. The terminal employees also deliver samples of the incoming oil to a lab located on the Side A, and the oil is tested by four quality-control employees, who work in the lab. The terminal employees do not leave Side A, but two of the quality-control employees cross to Side B roughly once a week to retrieve paperwork, to escort a rabbi during his inspection of Side B, and to themselves inspect a pipeline that fills shipping containers with oil on Side B. The quality-control employees generally do not interact with the employees who work on Side B. The four employees in the maintenance department also work on Side A. Their primary responsibility is to repair equipment on both sides of the plant and to schedule work orders, but they do not interact with the employees who work on Side B except as necessary to facilitate repairs.

         Side B of the plant is a single building called the packaging warehouse, which is designated for packaging and shipping of processed oil. The twenty-two packaging employees operate machines that adjust the viscosity of processed and unprocessed oil, place empty containers on a conveyor to be filled with unprocessed oil, and transport filled containers by forklift to a storage area for further handling by the shipping employees. After the packaging employees complete their tasks, the nine shipping employees load the packaged oil onto trucks, as well as schedule and monitor trucks arriving at the packaging warehouse to pick up processed and unprocessed oil. Four receiving employees also work in the packaging warehouse, one of whom coordinates the purchase of materials used by packaging employees and three of whom operate forklifts to unload packaging materials and store them in the warehouse. The packaging and receiving employees frequently interact and coordinate to accomplish their work tasks. In addition to sharing a single work location, the packaging, shipping, and receiving employees all have similar wage rates, earn the same benefits, and have a history of common supervision separate from that of employees on Side A. The employees who work in the packaging warehouse typically use the same break room, parking lot, and plant entrance, all of which are separate from those used by employees on Side A.

         The Union filed a representation petition with the Board in July 2014, seeking an election to become the bargaining representative of "all full-time and regular part-time packaging, shipping, and receiving employees" at the Fullerton plant. The Union's petition sought to "exclud[e] all other employees, packaging leads, shipping leads, office clerical employees, professional employees, staffing agency employees, guards[, ] and supervisors as defined in the [Act]." Packaging and shipping leads were excluded from the petitioned-for bargaining unit on the theory that they were "supervisors" under the Act. Cargill took a contrary position, arguing that the packaging and shipping leads were "employees" under the Act, not supervisors, and thus were required to be included in the bargaining unit. Cargill also argued that the maintenance, terminal, and quality-control employees shared a community of interest with the petitioned-for unit and were required to be included for the unit to be appropriate. At a hearing before the Regional Director, the Union stated that it would not proceed to an election if its petitioned-for bargaining unit was altered in any way. The Regional Director issued a decision on September 11, 2014, which held that the packaging and shipping leads were employees, not supervisors, under the Act and that the Union's petitioned-for bargaining unit was inappropriate because it specifically excluded these employees. Because the Union was unwilling to proceed to an election if its petitioned-for bargaining unit was altered, the Regional Director dismissed the Union's representation petition, finding it unnecessary to decide whether any alternate bargaining unit, i.e., one that included the packaging and shipping leads and the maintenance, terminal, and quality-control employees, was appropriate. Neither party requested reconsideration or Board review of the Regional Director's decision.

         Less than a week later, the Union filed another representation petition, this time seeking an election to become the bargaining representative of "all full-time and regular part-time packaging, shipping, and receiving employees" at the Fullerton plant. The Union sought to exclude "all other employees, maintenance employees, terminal employees, quality-control employees, staffing-agency employees, office clerical employees, guards[, ] and supervisors as defined in the [Act]." Cargill filed a motion to dismiss the petition with prejudice, arguing that the petitioned-for bargaining unit was identical to the unit sought by the Union in the earlier petition and rejected by the Regional Director as inappropriate. Cargill also argued that the new petition should be dismissed because it was an improper attempt to reopen the proceedings in the first representation petition, to seek reconsideration of the Regional Director's decision in those proceedings, and to litigate issues in an untimely or piecemeal fashion. The Regional Director denied Cargill's motion to dismiss, finding that the bargaining unit petitioned for in the second representation petition was not identical to that petitioned for in the first petition. The Director also rejected Cargill's other arguments.

         The Regional Director later issued a decision on the merits of the second representation petition, finding that the petitioned-for bargaining unit was appropriate and reaffirming that the shipping and packaging leads were employees and not supervisors under the Act. Cargill requested Board review of the Director's decision, arguing that the bargaining unit was inappropriate and again asserting that the second representation petition should have been dismissed for the reasons it had previously cited. The Board denied Cargill's request for review, concluding that the company had not raised any substantial issues warranting review.

         A secret-ballot election by the approved bargaining unit was held at Cargill's Fullerton plant on December 4, 2014, which resulted in fourteen votes in favor of the Union and fourteen votes against the Union. The ballots cast by three employees were challenged. Cargill also filed five objections to the election, and requested a hearing before the Regional Director. As relevant here, Objection 1 reiterated Cargill's argument that the Union's second representation petition should have been dismissed. Objection 5 alleged that pro-union employees waiting in line to vote "engaged in a loud demonstration just outside the polling room" and that the Board agent overseeing the election did not investigate or stop the conduct. The Regional Director issued a Supplement Decision, summarily overruling Objection 1 as "without merit, " noting that Cargill's various arguments for dismissal had been "fully litigated" and that Cargill "raise[d] nothing new that either was not or could not have been previously litigated" earlier in the proceedings. The Director ordered a hearing on Cargill's other objections, including Objection 5.

         At the hearing, Cargill's election observer testified about the circumstances surrounding the election, as did two employees who voted in the election. After considering the evidence and testimony, the Hearing Officer issued a Report recommending that Cargill's objections be overruled and that the three challenged ballots be opened and counted towards the final election result. With respect to Objection 5, the Hearing Officer found that even if the testimony of Cargill's witnesses were credited, the alleged conduct did not warrant setting aside the election results. The Hearing Officer found that there was no evidence that pro-union employees waiting in line outside the polling place attempted to persuade other employees to vote for the Union; that the loud and boisterous conduct lasted only fifteen minutes; that the incidents of booing and chanting were brief, isolated, and directed at a single employee; and that there was no evidence of threats or physical violence. The Hearing Officer concluded that because the complained-of conduct "was not so disruptive or coercive that it substantially impaired the employees' exercise of free choice, " overturning the election results was not warranted. Because the underlying employee conduct was not objectionable, it necessarily followed that the Board agent's determination not to investigate or stop that conduct was likewise not objectionable.

         Cargill filed exceptions to the Hearing Officer's findings and recommendation regarding Objection 5. The Board adopted the Hearing Officer's findings and recommendations and overruled Objection 5, concluding that the complained-of conduct did "not so substantially impair[] the employees' exercise of free choice as to require that the election be set aside." The Board ordered the Regional Director to open and count the three challenged ballots, which resulted in a revised vote tally of sixteen votes in favor of the Union and fifteen votes against it. The Regional Director then certified the Union as the collective-bargaining representative of a unit of packaging, shipping, and receiving employees at Cargill's Fullerton plant.

         Cargill refused to bargain with the Union in order to contest the Union's certification as the collective-bargaining representative, leading the General Counsel to file an unfair-labor-practice complaint with the Board that alleged violations of sections 8(a)(1) and (5) of the Act. Cargill's answer to the complaint again argued that the Union's second representation petition should have been dismissed. It also argued in general that the election was invalid, that certification of the Union as the bargaining representative was ineffective, and that Cargill had no duty to recognize or bargain with the Union. The Board granted General Counsel's motion for summary judgment, concluding that Cargill's complaints regarding the second representation petition and the conduct of the election either were or should have been raised in the representation proceedings and not in the unfair-labor-practice proceeding. The Board further concluded that Cargill had not offered any newly discovered or previously unavailable evidence or any special circumstances sufficient to justify revisiting any of Cargill's representation or election arguments. The Board ordered Cargill to cease and desist from refusing to recognize and bargain with the Union and from interfering with, restraining, or coercing employees in the exercise of their rights under the Act. It is from that order that Cargill petitions for review.

         Cargill first argues that the Board violated its rules and regulations and departed without explanation from its decisional law when it refused to dismiss the Union's second representation petition, which, Cargill asserts, sought a unit identical to the unit sought in the Union's first representation petition. "We review the Board's findings of fact for substantial evidence on the record as a whole, that is, for such relevant evidence as 'a reasonable mind might accept as adequate to support' a finding." Cellular Sales of Mo., LLC v. NLRB, 824 F.3d 772, 775 (8th Cir. 2016) (quoting NLRB v. Am. Firestop Sols., Inc., 673 F.3d 766, 767-68 (8th Cir. 2012)). We review the Board's conclusions of law de novo. Id. The Board has broad discretion to establish and implement procedures required to ensure "the free and fair choice of bargaining representatives by employees." Warren Unilube, Inc. v. NLRB, 690 F.3d 969, 974 (8th Cir. 2012) (quoting NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946)). We defer to the Board's interpretation of its own rules and regulations, so long as that interpretation is "reasonable and consistent with the Act." NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711-12 (2001) ("We find that the Board's rule . . . is ...


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