Southern Bakeries, LLC v. National Labor Relations Board
871 F.3d 811
8th Cir.2017Background
- Southern Bakeries purchased a bakery in 2005 and recognized the existing union (BCTGM Local 111) for ~200 production/sanitation employees; the CBA expired Feb 2012.
- Employees filed multiple decertification petitions (2009, Dec 2011, May 2012); the Board blocked at least one election because it found Southern had assisted a petition (settled) and later declined a scheduled Feb 2013 election based on unfair labor practice charges.
- Southern restricted union access (moved meetings to a cubicle, temporarily barred a representative), installed surveillance cameras in break areas, and gave mandatory anti-union speeches referencing Hostess and possible plant closures.
- Southern disciplined several pro-union employees (investigations, warnings, suspension) and in June 2013 accepted a withdrawal petition signed by a majority and withdrew recognition; it later unilaterally raised wages.
- The NLRB regional office charged Southern with multiple ULPs; an ALJ found numerous violations. The Board (split) affirmed most findings and ordered remedies including bargaining recognition. Southern petitioned for review; the Board cross-petitioned for enforcement.
Issues
| Issue | Plaintiff's Argument (NLRB/General Counsel) | Defendant's Argument (Southern) | Held |
|---|---|---|---|
| Whether Southern violated § 8(a)(1) by campaign statements (threats of plant closure, promises of benefits, disparagement, futility) | Statements threatened closure and promised benefits if union remained, coercing employees | Statements were permissible predictions/opinions about economic consequences and assurances to bargain if union retained | Court: upheld ULPs as to plant-closure threats and promises of benefits; reversed as to statements that merely conveyed futility; rejected Board as to racial-disparagement finding |
| Whether promulgation/application of a harassment-reporting rule and captive-audience statements violated § 8(a)(1) | Ledbetter’s encouragement to report "harassment" chilled solicitation and could be read as a threat to those soliciting | The rule was neutral, targeted harassment (not protected), and aimed to maintain workplace civility | Court: substantial evidence supported that the statements created a reporting rule that could be understood as chilling protected activity — upheld as unlawful |
| Whether Southern unlawfully interrogated and disciplined employees for union activity (§§ 8(a)(1), 8(a)(3)) | Investigations, interrogations, and discipline of pro-union employees were motivated by anti-union animus | Discipline was based on legitimate, neutral workplace rules (e.g., safety/newspaper rule, unauthorized break) | Court: upheld findings as to Loudermilk, Phillips, and Marks in large part (substantial evidence supported discriminatory discipline); vacated enforcement as to some adopted ALJ findings that Board treated as unopposed when they were opposed |
| Whether Southern violated § 8(a)(5) by restricting union access, installing cameras, withdrawing recognition based on a tainted withdrawal petition, and unilaterally raising wages | Withheld access and other coercive acts tainted the June 2013 withdrawal petition; installing cameras and unilateral wage change required bargaining | Employer had objective evidence (prior decert petitions, majority withdrawal signatures) and some actions were lawful or within management rights; no causal link between employer ULPs and employee disaffection | Court: upheld violations for cameras and certain access restrictions and that the June 2013 withdrawal petition was tainted (ordering continued recognition/bargaining); reversed Board where past-practice evidence of broader access was not established and vacated enforcement of some findings |
Key Cases Cited
- NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) (employer predictions vs. unlawful threats; "carefully phrased" standard)
- NLRB v. Noll Motors, Inc., 433 F.2d 853 (8th Cir. 1970) (employer predictions about closures can be unlawful threats)
- Cintas Corp. v. NLRB, 589 F.3d 905 (8th Cir. 2009) (deference to Board factfinding; substantial-evidence standard)
- McKinney ex rel. NLRB v. S. Bakeries, LLC, 786 F.3d 1119 (8th Cir. 2015) (prior injunction appeal; evidence of lack of union majority support before later events)
- Bank of St. Louis v. NLRB, 456 F.2d 1284 (8th Cir. 1972) (reporting requests may chill solicitation under context)
- RELCO Locomotives, Inc. v. NLRB, 734 F.3d 764 (8th Cir. 2013) (Wright Line burden-shifting for discriminatory discipline)
- Nichols Aluminum, LLC v. NLRB, 797 F.3d 548 (8th Cir. 2015) (substantial-evidence review requires consideration of adverse evidence)
- Tenneco Auto., Inc. v. NLRB, 716 F.3d 640 (D.C. Cir. 2013) (analysis of whether ULPs taint subsequent employee disaffection and the need for causal nexus)