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.,

INTERVENORS

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, lawenforcement 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 antiunion animus, even standing alone it provides substantial

evidence for the Board’s conclusion that Ward would not have
6

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.
8

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.