Thursday, April 23, 2009

Tenth Circuit Finds Religious Bigotry is OK...As Long as You Attack Mormons

I recently came across this case and found it so interesting that I had to point it out. For some reason I can't help but think this case would have held differently if these comments had been made towards a different religion or minority group.

United States Court of Appeal,
Tenth Circuit
HONEYVILLE GRAIN, INC., Petitioner/Cross-Respondant,
444 F. 3d 1269

Honeyville Grain is a Utah corporation with facilities in California and Utah. It processes and distributes food products, and it employs truck drivers to deliver its products. In February 2002, the Local 166 of the International Brotherhood of Teamsters, AFL-CIO (“the Union”) petitioned the Board for an election in a unit of Honeyville's full-time and part-time truck drivers at the Rancho Cucamonga, California facility. “[T]he Board not only conducts elections, but it also oversees the propaganda activities of the participants in the election to insure that the voters have the opportunity of exercising a reasoned, untrammeled choice for or against labor organizations seeking representation rights.”

The Board conducted a secret-ballot election at Rancho Cucamonga on April 12, 2002. All thirty-two eligible voters cast ballots; twenty-three voted in favor of the Union, seven voted against the Union, and two ballots were challenged. Later that month, Honeyville filed ten objections to the election. Relevant to this appeal, Honeyville objected to comments made in a meeting held at the Union's office five days before the election; twenty to twenty-five of the drivers attended. Meeting attendees testified that two Union agents, Rene Torres and David Acosta, stated:

1. Honeyville is run by Mormons;

2. Honeyville is giving its money to the Mormon Church;

3. Companies have tax incentive to give profits to churches, which should be shared with the workers instead;

4. Honeyville's Mormon owners not only give their money to the Mormon Church, but they also give money to the Mormon missionaries; and

5. Mormons are missionaries, and missionaries speak good Spanish.

Mr. Torres is a driver with Honeyville Grain, and Mr. Acosta is a business agent and organizer for the Teamsters Local 396. The most extensive testimony came from Enrique Erazo, a Honeyville driver who attended the meeting where the religious remarks were made. At a Board hearing, Mr. Erazo testified that Mr. Torres stated:

[The drivers] have rights to benefits. So, the money the Company was making-was a rich Company and so, the money that the Company was making, they needed to share it with every worker and improve the benefits to workers.

Since the Company was a Company run by Mormons, [the Union] said they would ... see to it that they would make better contributions-they did to the church and they would also distribute or share that money with Missionaries going out of the country and because the money was tax deductible and that is why they would give part of that money to the Mormon Church, instead of giving it to-sharing it with the workers-the opportunity that they have in order to better their way of life.

Mr. Erazo further testified that the meeting attendees applauded after Mr. Torres discussed the distribution of the company's profits and referenced the religious beliefs of its owners. Neither party has put forward any evidence about the religious makeup of the unit employees.

At the outset of our review, let us be clear: the Union agents' references to the religious belief of Honeyville's owners at this meeting were wholly inappropriate for any representative campaign, and in no way do we condone such remarks. Religious prejudice can work in subtle ways. We are particularly troubled by the testimony that the employees applauded after the Union representative's discussion of Honeyville's profits and incentives to contribute to the Mormon Church.

In conclusion the majority felt that Honeywell had not meet its burden.
The party challenging an election on the basis of pre-election religious comments must initially show that the remarks were either inflammatory or formed the core or theme of the campaign. Here, Honeyville did not satisfy this preliminary burden. While we in no way condone the inappropriate, unwarranted, and unjustified religious references, substantial evidence from the record considered as a whole supports the Board's conclusion that the comments were not inflammatory or central to the Union's campaign. “[I]f supported by substantial evidence, we must affirm the Board's conclusions even though we might reach a different result were we reviewing the record de novo.” (emphasis added). The Board did not abuse its discretion when it declined Honeyville's request to set aside the election. Accordingly, we DENY Honeyville's petition for review, and we ENFORCE the order of the Board.

Paul Kelly, Jr. dissented from the majority. He made several points I thought were very interesting.
Five days before the election, the union organizers were obviously trying to incite the employees to vote for the union. What better way than to point out that the owners or managers of the company were of a different faith and that the money they contributed to their church instead rightfully belonged to the workers? It is common knowledge that members of the LDS Church tithe. With all due respect to the majority, religious bigotry is blatant in this case. The court's resolution, taking comfort in the apparent absence of overt abuse, vulgarity, or profanity in the union organizers' diatribe, simply misses the forest for the trees.

The comments also disparaged the company, Honeyville, Inc., based upon its alleged charitable contributions which were deductible for federal income tax purposes. A corporation may deduct charitable contributions from taxable income, subject to a maximum of ten percent of such income. No evidence in this record suggests that Honeyville made such contributions.

The court states, as it must, that the references to the religion of Honeyville's owners “were wholly inappropriate,” not to be condoned, and particularly troubling given the employee applause that followed these comments. Although the court's holding is couched in deference, we need not defer to patently incorrect factual findings. Ignoring the obvious, the ALJ and the NLRB held that the statements in question were not an attempt to inject religious issues into the campaign by appealing to religious prejudice against the company and its owners. That conclusion is simply transparent. The only purpose of such comments was to mobilize the employees against their employer by suggesting that the employer preferred the religious interests of its owners over the welfare of its employees. This more than adequately satisfies a prima facie case of inflammatory remarks sufficient to shift the burden to the union to prove the remarks were truthful and germane. Were there any doubt, one need only consider the balance of those remarks. (“[T]he allegations in the Company's objection raised a prima facie case that [the] religious slur did impermissibly infringe on the employees' freedom of choice.”)

The union agents did not stop after slurring the Mormon Church. The next target was real or imagined contributions to Mormon missionaries. Finally came the non-germane commentary on the ability of the stereotypical missionaries to speak “good Spanish,” yet another reason to distrust the owners. In my view, this case cannot be meaningfully distinguished from Silverman's. There, the Third Circuit held that a union official's referring to a company official as a “stingy Jew” required the union to meet the burden of establishing the legitimacy of the remark, an impossible burden. Indeed, this court's attempts to distinguish Silverman's are not particularly availing. While it is true that Silverman's remanded for a hearing and our review is for substantial evidence, the Third Circuit made it clear that calling a company official a “stingy Jew,” regardless of the labor policies of the company, could not be legitimate; the issue on remand was whether the union could prove that the remark was harmless.

This court also indicates that the Mormon discourse was an isolated incident, not the central theme of the union's campaign. That rings hollow when one considers the nature of the ten “meetings” between the union and the employees. Although Mr. Stephenson testified that ten meetings occurred, the culmination of the union's campaign occurred at the April 7th formal meeting where all or virtually all of the drivers were present. Prior to that, all that occurred was a series of informal encounters between employee organizers and substantially less than all of the employees. These informal encounters are nowhere near the equivalent of the April 7th meeting or rally. As such, the court's conclusion that these statements were only an isolated incident bears no merit. Further, it strains credulity to suggest, as the court has, that under the “totality of the circumstances” these comments were not inflammatory, particularly given the employees' embracing the comments with applause.

The comments in this case came at a critical time in the organizing process, were reprehensible and had absolutely no proper purpose in the election. I dissent.

As a former Spanish speaking missionary who served under one of the Honeyville owners , I also dissent.

1 comment:

  1. I recommend that anyone interested in this case read the whole opinion, as only parts of it have been reproduced here.

    From the outset, Petitioner Honeywell had a relatively high burden to show that the remarks were inflammatory. Also, the factual background makes for a tough analysis. With a relatively small body of potential union members and a largely informal campaign process, it is tough to say whether statements made at a single meeting constituted the theme of a union campaign. The majority opinion refers to approximately 10 meetings in the campaign, but it doesn't describe them or the participants, which I think is disingenuous, given the shortcomings pointed out by the dissent. I also think majority probably ignored the possibility that union leaders made the anti-religious remarks as part of a new 11th hour theme of a campaign in a close election. The holding in Honeywell seems to say that union leaders could make a variety of deplorable statements as long as they did it at the last minute. This really was a close case, and I think it could have gone either way, but the majority opinion is misleading.

    I also wonder if the holding in this case isn't an indirect result of Employment Division v. Smith, which essentially stated that religious discrimination cases were not subject to the compelling governmental interest test. I get the sense that if similarly discriminatory remarks had been made about racial minorities the NLRB would have been less sympathetic to the union. Of course, the dissent points out the Silverman's Men's Wear case, which was was also a case of religious bigotry but reached the opposite conclusion. Either Mormonism is not given the same protections that Judaism receives, as Clint seems to allege, or the 10th Circuit doesn't afford the same protection as the 3rd Circuit.