United Food and Commercial Workers Union Local 24 v. NLRB 506 F.3d 1078 (D.C. Cir. 2007)
Veiled Threat or Economic Prediction?
In March 1999, United Food and Commercial Workers' (UFCW) attempted 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 (ALJ) found that Smithfield executives violated NLRA section 8(a)(1) by threatening to close the company's Wilson plant if workers unionized.
On review, the NLRB found for Smithfield on the issues of threatened plant closure. The union appealed.
TATEL, Circuit Judge
NLRA guarantees employees "the right to self- organization, to form, join, or assist labor organizations, … for the purpose of collective bargaining or other mutual aid or protection." 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."
In a case like this, which deals only with predictions of adverse economic consequences, a two-part inquiry [is required] to distinguish "permissible predictions" from "forbidden threats." First, did the employer predict "adverse economic consequences" as a result of unionization? If not, the inquiry ends. But if the employer made such predictions, then we proceed to the second question: did those predictions rest on objective facts outside the employer's control?
In a series of speeches and letters designed to combat the UFCW's unionization campaign, Plant Manager Phil Price and Smithfield President and Chief Operating Officer Lewis Little repeatedly told employees that three other companies had previously operated the Wilson plant, that the UFCW had unionized the plant under each of those companies, and that each company ultimately shut down the plant. Both managers, however, carefully avoided linking the previous closures directly to the union. [One manager's speech included the following:]
In none of these three cases did a union contract provide long-term job security for employees. Maybe it was just the opposite. Maybe the union forced inflexible rules on these companies so that they could not compete in today's environment. Maybe this union made it so these companies couldn't satisfy their customers' demands. It really doesn't matter. Whether this union caused these other three plants to close is not for me to say. I don't know what happened. I do know that Smithfield wants this plant to be a success ….
Later in the unionization campaign, Price [wrote the following] in a letter to all Smithfield employees:
Did the UFCW cause these three companies to close the plant here on Wilco Boulevard? I don't know the answer to that. Maybe they did, maybe not. But I can spot a bad trend …. The UFCW is obviously a jinx for this plant. They have struck out for Wilson employees three times. It's time for another approach.
Finally, in an election-eve speech to employees, Smithfield President Lewis Little explained that he was "committed to the success of this plant." Echoing Price, however, Little made no predictions: "I cannot stand here and tell you what will happen." He concluded by urging employees not to "hang the UFCW around this plant's neck for a fourth time."
[W]e conclude that substantial evidence supports the Board's finding that neither Price nor Little threatened to close the Wilson plant in the event of unionization. As the Board found, neither executive predicted that the company would take any particular course of action, nor did either ever suggest closing the plant. To the extent that Little made any prediction at all, he told employees that he intended to invest in the Wilson facility and was "committed" to its success. The record also reveals that when asked whether Price ever said that "the plant would close if the union got in," one employee responded, "No, he just asked what wouldwhat do we think would happen."
In upholding the Board's decision, we acknowledge that the record could be read differently. Perhaps the Board could have interpreted the managers' statements as the union does, namely as "thinly veiled prediction[s] that electing the union a fourth time would result in closure."
Nevertheless, as the union acknowledges, it is the Board's duty, not ours, to "focus on the question: 'What did the speaker intend and the listener understand?'" Here, the Board determined that threats were neither intended nor understood.
The union argues that the Board departed from its own precedent, specifically Eldorado Tool, Division of Quamco, Inc., 325 N.L.R.B. 222 (1997). There, the employer had displayed a poster depicting a row of tombstones bearing names of plants that had previously closed after unionization. The last tombstone bore the employing plant's own name with a question mark beneath it. Although the Board concluded that the employer's actions violated the Act, the case is both distinguishable and irrelevant. It's distinguishable because there the Board found that "no member of the [employer's] management ever sought to clarify the message, or to assure employees that it was not predicting that the same fate awaited [them] as had befallen other plants," while here the Board found exactly the opposite.
For the reasons given above, we deny the union's petition for review.
1. What does the court find is critical in the statements by the managers about the future of the plant in the event of unionization?
2. Why was the Eldorado Tool decision a different outcome from this case?
3. What advice would you give plant managers when faced with a unionization effort?