N.L.R.B. v. Cal-Maine Farms, Inc. ( 1993 )

United States Court of Appeals,
Fifth Circuit.
No. 92-4741.
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
CAL-MAINE FARMS, INC., Respondent.
Sept. 1, 1993.
Application for Enforcement of an Order of the National Labor Relations Board.
Before KING, HIGGINBOTHAM and DeMOSS, Circuit Judges.
KING, Circuit Judge:
This case is before us on the application of the National Labor Relations Board (the "NLRB")
for enforcement of its order against Cal-Maine Farms, Inc. The NLRB's order issued on April 30,
1992. We have jurisdiction under § 10(e) of the National Labor Relations Act, 29 U.S.C. §§ 151 et
seq., 160(e). After a thorough review of the record, we enter judgment enforcing the NLRB's order.
I. BACKGROUND
Cal-Maine Farms, Inc., is a large commercial agricultural operation that produces and
processes hen-laid eggs in its plants located in various southern states. In a NLRB election conducted
on March 30, 1988, employees of Cal-Maine Farms' 4000-acre Edwards, Mississippi plant voted 60-4
in favor of having the United Food and Commercial Workers International Union, Local 1529, AFL-
CIO-CLC ("the union") represent employees. Following the NLRB's certification of the union shortly
thereafter, Cal-Maine's management refused to recognize or bargain with the union. The management
claimed it was justified in refusing to bargain on the ground that the workers at the Edwards plant
were not "employees" within the meaning of the National Labor Relations Act ("the Act") and instead
were "agricultural laborers." "Agricultural laborers" are explicitly excluded from the coverage of the
Act. See 29 U.S.C. § 152(3).1
1
Since 1946, in riders to the NLRB's annual appropriations acts, Congress has provided that
the term "agricultural laborer" shall be defined in accordance with Section 3(f) of the Fair Labor
Standards Act, 29 U.S.C. § 203(f). Bayside Enterprises, Inc. v. NLRB, 429 U.S. 298, 300 and n.
In May 1988, the union filed a charge with the NLRB stating that Cal-Maine had failed to
recognize the union or bargain with it in good faith, as required by the Act. General Counsel for the
NLRB agreed with the union, and a complaint issued in June 1988. After an administrative hearing
in May 1989, the administrative law judge ("the ALJ") found that Cal-Maine violated §§ 8(a)(1) &
(5) of the Act. At the time of that hearing, the rule governing the exemption of agricultural workers
had been set forth by the NLRB in DeCoster Egg Farms, 223 N.L.R.B. 884, 1976 WL 6879 (1976).
The so-called "single-egg test" of DeCoster "limit[ed] the exemption to those processors who deal
exclusively with their own goods." Id. (emphasis added). That is, the procurement of even a single
egg produced from outside sources would preclude classification of a commercial farming operation's
workers as "agricultural laborers." In light of DeCoster, the ALJ defined the issue for adjudication
at the May 1989 hearing as "whether [Cal-Maine's] employees at the Edwards egg packi ng plant
processed only eggs produced at that facility after April 1, 1988, or also processed [any] eggs
produced elsewhere." The ALJ found that outside eggs had been processed at Cal-Maine's Edwards
plant and thus held that Cal-Maine's management had violated the Act by refusing to recognize or
bargain in good faith with the union.
While Cal-Maine's appeal of the ALJ's initial decision was pending with the NLRB, the
agency issued its decision in Camsco Produce Co., 297 N.L.R.B. 905, 1990 WL 122306 (Mar. 15,
1990), which overruled DeCoster to the extent it was inconsistent with the formulation of the rule
6, 97 S. Ct. 576, 579 and n. 6, 50 L. Ed. 2d 494 (1977); see also Amalgamated Meat Cutters &
Butcher Workmen v. McCulloch, 428 F.2d 396, 399 (5th Cir.1970). That section defines
"agriculture" to encompass "farming in all its branches," including "the raising of ... poultry, and
any practices ... performed by a farmer or on a farm as an incident to or in conjunction with such
farming operations...." 29 U.S.C. § 203(f); see Bayside Enterprises, 429 U.S. at 300, 97 S.Ct. at
579. That provision defines agriculture "in both a primary and a secondary sense." Id. The
primary meaning encompasses "farming in all its branches," including such practices as the
cultivation and tillage of the soil, dairying, the cultivation of agricultural and horticultural
commodities, and the raising of poultry. Farmers Reservoir & Irrigation Co. v. McComb, 337
U.S. 755, 762, 69 S. Ct. 1274, 1278, 93 L. Ed. 1672 (1949); Bayside Enterprises, 429 U.S. at
300 n. 7, 97 S. Ct. at 579 n. 7; Camsco Produce Company, Inc., 297 N.L.R.B. 905, 906, 1990 WL
122, 306 (1990). The secondary meaning "includes any practices, whether or not themselves
farming practices, which are performed either by a farmer or on a farm, incidentally to or in
conjunction with "such' farming operations." Farmers Reservoir & Irrigation Co. v. McComb,
337 U.S. at 762-763, 69 S.Ct. at 1279; Bayside Enterprises, 429 U.S. at 300-301 & n. 7, 97
S. Ct. 579 & n. 7; Chapman v. Durkin, 214 F.2d 360, 361-362 (5th Cir.), cert. denied, 348 U.S.
897, 75 S. Ct. 218, 99 L. Ed. 2d 704 (1954).
announced in Camsco. Camsco held that the Act's exemption for "agricultural laborers" would be
based on whether the employees in question "regularly" handle "any" amount of the products of
outside producers.2 Thus, the "single egg test" of DeCoster was replaced by Camsco 's "regularity"
standard. Camsco also required that the party seeking exemption from the Act—in this case, Cal-
Maine—has the burden to establish that outside produce is not regularly handled by the employees
seeking representation. Camsco, 297 N.L.R.B. 905. The NLRB subsequently remanded the case to
the ALJ to consider the impact of the new rule in Camsco on the result in this case.
The ALJ issued his supplemental decision after a supplemental hearing in October 1990. In
that decision, the ALJ reaffirmed his original position. On appeal to the NLRB, the ALJ's decision
was affirmed by a vote of three to one. See Cal-Maine Farms, Inc., 307 NLRB No. 66, 1992 WL
101249, 1992 NLRB NEXIS 609 (April 30, 1992). The NLRB then applied to this court for a
judgment enforcing its order.
II. STANDARD OF REVIEW
A) Legal determinations
It is the NLRB's "special duty" to apply the National Labor Relation Act's exemption for
agricultural laborers "to varying fact patterns." Bayside Enterprises, Inc. v. NLRB, 429 U.S. 298,
304, 97 S. Ct. 576, 581, 50 L. Ed. 2d 494 (1977). In performing that duty, the NLRB is charged with
construing the Act—including its incorporation of the term "agricultural laborer" as used in the Fair
Labor Standards Act—"liberally in favor of the workers" for whose protecti on those laws were
designed, and that any exemption from the terms of those laws must be "narrowly construed." Wirtz
v. Ti Ti Peat Humus Company, Inc., 373 F.2d 209, 212 (4th Cir.), cert. denied, 389 U.S. 834, 88
2
Although the dictionary definition of "regularity" is "customary," "usual," or "normal," see
AMERICAN HERITAGE DICTIONARY 1041 (2d ed. 1982), the NLRB in Camsco intended
"regularity" to mean only non-aberrational, i.e., more than one or two isolated instances not part
of a larger pattern. See Camsco, 297 N.L.R.B. 905 ("[I]t makes no sense, given the framework of
our statute, to find the agricultural exemption inapplicable simply because on a single occasion,
under circumstances that might never occur again, a few commodities from another employer's
operation were handled by the employees at issue.... [In the instant case,] the Employer has not
demonstrated that its handling of [outside produce] occurred very rarely, on only an emergency
basis."). Camsco also makes it clear that any amount of outside produce, so long as handled
"regularly," will cause the agricultural exemption to be lost. See id.
S.Ct. 37, 19 L. Ed. 2d 94 (1967); see also NLRB v. Security Guard Service Inc., 384 F.2d 143, 147
(5th Cir.1967) (recognizing "the standard reluctance to apply [a statutory] exception broadly").
The NLRB's "expert" construction of the agricultural-laborer exemption is entitled to
deference on review, because it presents a question that is "particularly unsuitable" for a reviewing
court. NLRB v. Design Sciences, 573 F.2d 1103, 1104 (9th Cir.1978); see also Bayside Enterprises,
429 U.S. at 304 n. 14, 97 S. Ct. at 581 n. 14 (where the NLRB has construed the agricultural-laborer
exemption, a reviewing court has a "limited" function and must give "appropriate weight" to the
NLRB's judgment). Accordingly, the NLRB's determination that particular workers are statutory
employees and not agricultural laborers must be upheld " "if it has warrant in the record and a
reasonable basis in law.' " Bayside Enterprises, 429 U.S. at 304 n. 14, 97 S. Ct. at 581 n. 14 (quoting
NLRB v. Hearst Publications, Inc., 322 U.S. 111, 126, 64 S. Ct. 851, 858, 88 L. Ed. 1170 (1944));
see also NLRB v. Design Sciences, 573 F.2d at 1104.
B) Factual determinations
This court reviews the NLRB's factual determinations under the well-known "substantial
evidence" standard announced by the Supreme Court in Universal Camera Corp. v. NLRB, 340 U.S.
474, 71 S. Ct. 456, 95 L. Ed. 456 (1951). The Court defined substantial evidence as "more than a
scintilla. It means such relevant evidence as a reasonable mind would accept as adequate to support
a conclusion." Id. at 477, 71 S.Ct. at 459. Substantial evidence "must be enough to justify, if the trial
went to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of
fact for the jury." Id. A reviewing court must consider the totality of evidence in the record,
including "that which fairly detracts from the [NLRB's] decision." Universal Camera, 340 U.S. at
488, 71 S.Ct. at 464.
However, in determining whether the NLRB's factual findings are warranted by the record,
this court will not "pass on the credibility of witnesses or reweigh the evidence." Helena
Laboratories Corp. v. NLRB, 557 F.2d 1183, 1187 (5th Cir.1977). Indeed, where a case turns on
witness credibility, this court will accord special deference to the NLRB's credibility findings and will
overturn them "only in the most unusual of circumstances." Centre Property Management v. NLRB,
807 F.2d 1264, 1268 (5th Cir.1987); see also NLRB v. Ryder/P.I.E. Nationwide, Inc., 810 F.2d 502,
507 (5th Cir.1987) ("great deference" accorded to NLRB's credibility findings); NLRB v. Florida
Medical Center, Inc., 576 F.2d 666, 671 (5th Cir.1978) (credibility findings will be upheld unless
"self-contradictory").
III. ANALYSIS
There is no dispute among the parties that, as a general principle of labor law, the employees
of a farming operation that processes agricultural products exclusively grown on the premises of the
farm itself would not be subject to the terms of the Act. Rather, the parties dispute whether there is
"substantial evidence," see Universal Camera, supra, to support the NLRB's finding that Cal-Maine
"regularly" procured "any" eggs from outside sources after April 1, 1988.3 As a collateral matter, the
parties are in dispute whether the NLRB, in keeping with its prior decision in Camsco Produce
Company, Inc., 297 N.L.R.B. 905, 1990 WL 122306 (1990), made sufficient findings in the instant case
regarding the "regularity" of Cal-Maine's procurement of any such outside eggs.
After a thorough review of the voluminous record, we conclude both that there is substantial
evidence supporting the NLRB's decision and that the agency did make proper findings regarding the
"regularity" of the outside eggs handled by Cal-Maine employees. Thus, the NLRB was correct in
finding that Cal-Maine violated the provisions of the Act that require employees to recognize and
bargain in good faith with a NLRB-certified union. Our review here will summarize the primary
pieces of evidence relied upon by the ALJ and the NLRB.4 We note at the outset that the burden of
proof in this case was on Cal-Maine to establish by a preponderance of the evidence that it did not
regularly procure any amount of outside eggs.
1) Summary of the relevant evidence
A. Evidence of Outside Deliveries
3
April 1, 1988 is the relevant date in this case both because Cal-Maine employees voted in
favor of the union on March 30, 1988, and because Cal-Maine claims that it discontinued
procuring eggs from outside sources on April 1, 1988.
4
A detailed discussion of all of the evidence may be found in the ALJ's two opinions, which are
attached to the NLRB's published order. See Cal-Maine Farms, Inc., 307 NLRB No. 66, 1992
WL 101249, 1992 NLRB LEXIS 609 (April 30, 1992).
Two of the General Counsel's witnesses testified that they observed distinctive types of
dollies5 and shipping stickers on the dollies which indicated that outside eggs were received after
April 1, 1988, the date that Cal-Maine claims that such shipments ceased. Employees Daisy Bishop
and Virginia Foster testified that they saw dollies and stickers on dollies from other Cal-Maine plants
arrive at the packing plant in December 1988 and January and March 1989. In addition, employee
Larry Bishop testified that he saw a tractor-trailer arrive with a shipment of unprocessed outside eggs
at the packing plant in early 1989. The ALJ credited these three witnesses' testimony.
Cal-Maine has challenged these three employees' testimony on various grounds. With respect
to the two employees who claimed to have seen dollies and stickers from outside sources, Cal-Maine
argues that the presence of dollies and stickers from other locations may be explained: According
to Cal-Maine's witnesses at the administrative hearing, Cal-Maine regularly intermingles empty dollies
from its various plants; furthermore, many of the stickers from other Cal-Maine plants allegedly were
left on such intermingled dollies from previous shipments and did not indicate that egg shipments
actually came to the Edwards plant from other Cal-Maine facilities after April 1, 1988. Although the
ALJ appeared to agree that empty dollies may have been intermingled, the ALJ discredited Cal-
Maine's explanation for the allegedly out-dated stickers by finding, based on competent evidence, that
Cal-Maine had a policy of removing out-dated stickers and that the presence of the stickers on more
than one occasion was not adequately explained by Cal-Maine's claim that the stickers were simply
left on the dollies inadvertently.
As for Larry Bishop's testimony about the truck, the ALJ noted that, based on undisputed
testimony, an eighteen-wheeler truck would not ordinarily be used to move eggs within Cal-Maine's
Edwards plant and that such vehicles were used only to make outside deliveries, such as those that
regularly occurred befo re April 1, 1988. One of Cal-Maine's managers attempted to explain the
presence of the truck by claiming that on one occasion eggs had been moved within the Edwards
complex via an eighteen-wheeler. The ALJ discredited that witness' explanation on the grounds that
the same witness had previously claimed that eighteen-wheelers were not used to move eggs
5
"Dollies" are devices used by Cal-Maine to transport eggs.
produced within the Edwards complex and only "remembered" the alleged single instance in order
to rebut Larry Bishop's testimony.
The NLRB affirmed the ALJ's findings. Our review o f the relevant testimony leaves us in
agreement with the NLRB. Although this evidence, by itself, would not establish that Cal-Maine
regularly procured outside eggs, it is probative evidence that may be considered along with other
evidence, discussed infra.
B. Robert Turner's Testimony
In his testimony at the hearing, Cal-Maine's shipping and receiving supervisor, Robert Turner,
flatly denied that outside eggs had been received at Edwards after April 1, 1988. The ALJ noted,
however, that Turner also stated that the packing plant received outside eggs until around the time
that a certain record-keeping change was made, in November 1988. Furthermore, when asked about
Cal-Maine's policy of removing out-dated dolly stickers by employees, Turner replied: "I don't have
a lot of time to go pulling stickers off of 28 dollies or eight dollies or whatever is on the load. If it
is an outside load, yo u would have at least 43 or 45 dollies on there." According to undisputed
evidence, loads of 43 or 45 dollies necessarily would be from outside of the Edwards plant, delivered
on eighteen-wheeler trucks, as opposed to the smaller vehicles used to make internal shipments of
eggs within the Edwards complex. The ALJ found that Turner's present-tense statement was in effect
an admission that the Edwards plant had recently been receiving outside shipments of eggs.
Cal-Maine argues that the ALJ misinterpreted Turner's statements which the ALJ considered
to be evidence that the Edwards plant was in fact receiving outside shipments after April 1, 1988.
We have examined Turner's statements in context and agree that they are by no means conclusive
admissions by him that the Edwards plant continued to receive outside shipments after April 1, 1988.
At the same time, however, we do not agree with Cal-Maine that Turner's statements have no
probative value. In particular, his use of the present tense in his statements about "twenty-eight,"
"forty-three," and "forty-five" dollies raises a legitimate question about whether such outside
shipments were still being received around the time of the 1989 hearing. Again, we note that such
evidence by itself is not sufficient to support the ALJ and NLRB's findings. However, it is probative
evidence that was properly considered by the NLRB along with other evidence.
C. Mendenhall, Mississippi Records
In addition to its processing plant located in Edwards, Mississippi, Cal-Maine also has an
office in Mendenhall, Mississippi, where Cal-Maine contracts with local egg farmers and receives
deliveries from them that are shipped to Cal-Maine's various processing plants. Cal-Maine does not
dispute that until April 1, 1988, eggs procured from outside sources in Mendenhall were transported
to the Edwards plant. At the original hearing in May 1989, Cal-Maine introduced the Mendenhall
facility's shipping log through December 31, 1988, purporting to show no shipments to the Edwards
plant after March 31, 1988. In addition, Cal-Maine introduced partial receiving logs for the Edwards
plant, which did not record any Mendenhall receipts after April 1, 1988. One of Cal-Maine's
witnesses, packing plant manager James King, stated that he could not recall how Mendenhall receipts
were recorded, but speculated that they were listed in a separate "outside" log, which was not offered
into evidence.
After the ALJ noted in its initial decision that the records introduced were incomplete and
therefore unreliable, Cal-Maine, at the second hearing, introduced one page, dated April 1, 1988,
purporting to be part of the "outside log." The document contained no references to egg receipts
from outside sources. The ALJ again discredited the purported log and the NLRB agreed, holding
that "the proffer of the record from only one date does not inspire confidence that the records
submitted in this proceeding are reliable evidence that all outside deliveries ceased on April 1, 1988."
We have examined the various records and concur with the conclusions reached by the ALJ and
NLRB.
D. Truck Drivers from Mendenhall
Cal-Maine presented a witness who stated he was a truck foreman at the Mendenhall shipping
and receiving office. He flatly denied that eggs from Mendenhall were delivered to the Edwards plant
after April 1, 1988. The ALJ did not credit his testimony because the witness was found to be
"evasive" and, thus, unreliable. Furthermore, the ALJ noted that, although the Mendenhall truck
foreman was one of six or seven drivers who could have made such deliveries, Cal-Maine called none
of the others to testify. The NLRB refused to disturb the credibility finding of the ALJ. In view of
the tremendous deference that we afford to the trier-of-fact on credibility matters, nor will we.
E. Cal-Maine's Correlation Between Production Records and "Run Sheets"
At the hearing, Cal-Maine introduced an analytical document purporting to correlate
egg-receipt log entries with "run sheets," i.e., weekly records that track opening inventory, the
number of eggs laid, and the number actually processed. Through this document, Cal-Maine sought
to show that hens in the Edwards facility laid enough eggs to account for the processing totals at the
packing plant. The ALJ found, however, that the analysis revealed significant discrepancies, both
"overages" and shortages, as it tracked each week's beginning inventory, production, and processing
totals. The ALJ found that these discrepancies "create further doubts that [Cal-Maine's] documentary
evidence accurately reflects egg receipts at the Edwards farm."
The NLRB agreed with the ALJ that, if anything, Cal-Maine's documentation actually
detracted from, rather than supported, Cal-Maine's position. The NLRB refused to consider Cal-
Maine's attempt to explain the discrepancies, noting that Cal-Maine's "attempt in its brief to explain
these discrepancies ... was provided only in the brief, and not based on record evidence [and,
accordingly, that] there was no opportunity for the parties or the judge to explore its premises and
methodology. We therefore decline to rely on [Cal-Maine's] discussion of its "correlation.' "
On appeal to this court, Cal-Maine once again attacks the ALJ's interpretation of the
production records and run sheets and argues that the ALJ's finding that the document showed
significant "overages" of eggs on fifteen different occasions was unfounded. For essentially the same
reasons offered by the NLRB, we refuse to accept Cal-Maine's belated explanation and instead accept
the ALJ's interpretation of the document. Moreover, we observe that Cal-Maine, in its original brief
to this court, does not attack the ALJ's interpretation of the records and only does so for the first time
in its reply brief. See Reply Brief for the Respondent, at p. 9. As this court has repeatedly held, we
will not review arguments raised for the first time in a reply brief. See, e.g., United States v. Clinical
Leasing Service, Inc., 982 F.2d 900, 902 n. 4 (5th Cir.1992).
F. Conversation Between Supervisor Meyers and Employees Bishop and Foster
At the hearing, two employees of Cal-Maine, Daisy Bishop and Virginia Foster, each claimed
that their supervisor, William C. Meyers, told them in December 1988 that the management at Cal-
Maine had "already bought some [outside] eggs and [was] going to buy more," so as to assure that
there was a sufficient supply of eggs available for processing in response to the increased demand
during Christmas. The ALJ credited the two employees' testimony and discredited the supervisor's
claim to the contrary. Again, the NLRB refused to disturb the ALJ's credibility findings.
On appeal to this court, Cal-Maine argues that the ALJ and NLRB erred in giving any weight
to the two employees' claims because their testimony was hearsay.6 To begin with, as the NLRB
observes, Cal-Maine did not object to the two employees' testimony on hearsay grounds at the
administrative hearing. Thus, their hearsay objection is waived. Even if the claim were not waived,
we would find that it is non-hearsay under the party-opponent admission exception to the hearsay
rule. See FED.R.EVID. 801(d)(2)(D) (admission of employer's "agent or servant concerning a matter
within the scope of the agency or employment" admissible as non-hearsay). The statements made by
Cal-Maine's supervisor are highly probative evidence supporting the NLRB's finding that outside eggs
were procured well after April 1, 1988.
2) Is the NLRB's decision based on "substantial evidence"?
Cal-Maine argues that the agency's finding that outside eggs were "regularly" procured by
Cal-Maine is not based on substantial evidence. We disagree. The agency's decision was based on
numerous pieces of evidence that, in the aggregate, undoubtedly support its finding. Particularly
probative is the testimony of Daisy Bishop and Virginia Foster, who testified not only that they had
observed various dollies and stickers from some of Cal-Maine's other plants, but also that a leading
member of Cal-Maine's management had admitted to them each that Cal-Maine was procuring eggs
from outside sources in December of 1988, many months after Cal-Maine allegedly ceased procuring
outside eggs. We also are impressed by Cal-Maine's own documentary evidence offered that shows
6
We note that 29 U.S.C. § 160(b) requires the NLRB to conduct its evidentiary proceedings in
accordance with the Federal Rules of Evidence "so far as practicable." See NLRB v. Augusta
Bakery Corp., 957 F.2d 1467, 1479 (7th Cir.1992); but cf. Richardson v. Perales, 402 U.S. 389,
402, 91 S. Ct. 1420, 1428, 28 L. Ed. 2d 842 (1971) (hearsay evidence may be considered by
appellate court in determining whether "substantial evidence" supports agency decision).
substantial weekly "overages" of eggs in the Edwards plant's logs after April 1, 1988.
Cal-Maine argues that the ALJ and NLRB simply ignored the voluminous documentary
evidence purporting to show that no eggs were shipped to Cal-Maine from any outside sources after
April 1, 1988. We agree with the ALJ that such evidence, while probative, is hardly conclusive. The
various documents—which constitute numerous volumes of the appellate record—were admitted by
the ALJ under the "business records" exception to the hearsay rule. See FED.R.EVID. 803(6). We
observe that the commentary to the pertinent rule of the Federal Rules of Evidence discusses many
problems associated with evidence of business records, noting, inter alia, that "hesitation must be
experienced in admitting everything which is observed and recorded in the course of regularly
conducted activity." Id. (Advisory Committee Notes). And although the fact "that records might
be self-serving has not been a ground for exclusion" of business records, id., the potential certainly
is a permissible matter for a trier-of-fact to consider in deciding how much weight to afford the
business records of a party offered in support of its position. This is precisely what the ALJ did in
the instant case. Moreover, in view of the various pieces of evidence that belie what Cal-Maine's
business records purport to show—including aspects of the records themselves, see supra
discussion—we refuse to disturb the agency's decision that Cal-Maine's documentary evidence should
be given little weight.
Finally, we must address Cal-Maine's claim that neither the NLRB nor the ALJ made
sufficient findings regarding "regularity," as required by the NLRB's decision in Camsco. We
disagree. Although the ALJ and NLRB did not make specific findings regarding precisely when and
precisely how many outside eggs were handled by Cal-Maine after April 1, 1988, we do not read
Camsco as requiring such precision. We believe that the ALJ and NLRB made sufficient findings
regarding "regularity" in finding, inter alia:
i) that there were "overages" of eggs in Cal-Maine's records, which were documented over
the course of many months;7
7
As the ALJ found: "Although a lesser beginning inventory may possibly be explained by eggs
unfit for processing, a larger than expected inventory raises questions about the source of the
unexpected eggs. There are 15 overages between June 25, 1988 and October 20, 1990, the
largest an overage of 62,985 dozen on June 25, 1988 " (emphasis added).
ii) that two employees each observed dollies and shipping stickers indicating that outside eggs
had been shipped in late 1988 and early 1989;8
iii) that a third employee observed at least one eighteen-wheeler unload "outside" eggs at Cal-
Maine's Edwards plant around Easter of 1989;9 and
iv) that Cal-Maine a superviso r admitted to two employees that the company had been
acquiring "outside" eggs in December of 1988.
IV.
In sum, we believe that the record contains sufficient evidence to support the NLRB's finding
that Cal-Maine "regularly" procured eggs from outside sources after April 1, 1988. Thus, the NLRB
was correct in holding that Cal-Maine has violated §§ 8(a)(1) & (5) of the National Labor Relations
Act by refusing to recognize and bargain in good faith with the NLRB-certified union. Accordingly,
we enter judgment enforcing the order of the National Labor Relations Board in Cal-Maine Farms,
Inc., No. 15-CA-10588.
8
As stated in the ALJ's findings:
Daisy Bishop, a longtime packer at the Edwards processing plant, testified that in
December 1988 she saw 20-30 dollies which looked different from the usual dolly
used at Edwards, and 20-40 such dollies in February. Plant manager King testified
that dollies used at different locations are not the same, and that the Hope dolly
has a latch. Bishop testified that she saw additional such dollies in March. They
had Hope, Arkansas stickers which Bishop distinguished from the restricted sticker
used for substandard eggs. Bishop testified: "It just said Hope, Arkansas where
the eggs had come from. They was, the sticker was in [the] flat with the eggs." In
addition Virginia Foster, also a long-time employee testified that she saw dollies
coming into the plant the week before the first hearing [i.e., May 1989]. They had
various stickers on them, some from Hope and others from locations in Texas. I
credited Daisy Bishop and Virginia Foster.
9
As the ALJ found:
[Larry] Bishop affirmed that he saw 18-wheel tractor trailers at the New Complex
dock in early 1989, and that at least one of them unloaded unprocessed eggs in
dollies bearing "Hope, Arkansas" and "Blue Hill" or "Blue Ridge" stickers.
Although Bishop averred that some vehicles did not unload eggs, it is unclear
whether he affirmed that one or more than one vehicle did unload eggs. The one
truck which he identified specifically was a red Mack tractor-trailer driven by a
driver named Ford.