PETITION FOR REVIEW OF THE FINAL DECISION AND ORDER DATED MAY 12, 1981 OF THE NATIONAL LABOR RELATIONS BOARD AND CROSS-APPLICATION FOR ENFORCEMENT
Before Hunter, Weis and Higginbotham, Circuit Judges.
In this appeal an employer attacks the jurisdiction of the National Labor Relations Board on First Amendment grounds. The employer processes cheese from milk supplied by a cooperative controlled by Amish farmers who oppose unions as a matter of religious belief. Alleging that if the Board exercises jurisdiction, the Amish will lose their market for milk and the cheese plant will lose its sole supplier, the employer argues that it should be exempt from Board regulation. We do not find adequate factual support for the employer's assertions and grant enforcement of a Board cease and desist order.
A former employee filed an unfair labor practice charge with the Board, alleging that he was unlawfully discharged from his job because of union organizing activities. The Board concluded that the discharge had been for unrelated causes but, finding improper promises of benefits and a threat of plant closure, issued a cease and desist order. The Board also rejected a jurisdictional challenge that because of the close relationship between the employer and its suppliers, unionization of the plant would impinge on the Amish religious tenets.
At the hearing before the ALJ there was testimony that the religious beliefs of the Old Order Amish sect proscribe the use of electricity. When Pennsylvania enacted regulations in 1955 requiring refrigeration of milk, a process which utilizes electrical equipment, the Amish dairy farmers were unable to comply without violating their religion. They then organized the Farmers' Cheese Cooperative Association, to which they delivered their milk for eventual marketing as cheese products. The Association arranged to have Jacobo Marti, a non-Amish, convert the milk to cheese. Marti is paid a percentage of the proceeds from cheese sales.*fn1
The Association supplies all of the milk Marti uses for cheese and retains title to the milk and cheese until it is sold. Marti hires and fires its employees, fixes wages and working conditions, and is fully responsible for all the operating costs and expenses of the cheese processing operation.
The plant employs eighty-nine persons, twenty of whom are Amish and members of the Association. They receive the same wages as the other employees, but because of their religious beliefs, do not participate in the employer's profit-sharing plan or hospitalization benefits. The Amish employees are also not permitted to join a union.
The parties stipulated that "during an organizational campaign in 1973, the Association informed (Marti) that, because of the tenets of the Amish religion, it would terminate its agreement with (Marti) should (its) employees organize, form or join a labor organization." Jacobo Marti, plant president, testified that he did not think that he would have to shut down if a union came in, but that his business would be disrupted because he would lose his Amish suppliers and employees. He also said that the Amish dairy farmers in the area would have difficulty in finding another processor because there was "nobody around who could handle it." He was uncertain whether the Amish might arrange some accommodation to supply him with milk in the event that his employees became unionized.
The charges which triggered the hearing grew out of the discharge of Walter W. Holler, a non-Amish employee. In June of 1979, after a year at the plant, Holler began to discuss the idea of unionization with fellow employees. When the personnel manager heard about these overtures, he invited Holler into a private office for a conversation about the situation. The manager explained the advantages and disadvantages of a union and pointed out that the plant couldn't function without the Amish and it would close if a union came in. In addition, he talked about forming a representative committee of employees and also indicated that if production were increased, wages could be raised. The ALJ found these remarks constituted a violation of § 8(a)(1) and (3) of the National Labor Relations Act.
It was also determined that Holler's discharge three months later was the result of his disruptive conduct, not his union activity, and therefore, no violation occurred at that time. The ALJ accordingly recommended that a cease and desist order be issued to prevent the employer from making threats of plant closure or promising better working conditions if the employees refrained from joining a labor organization.
The ALJ rejected the jurisdictional challenge, finding that the employer was a separate and distinct organization from the Association and that Marti had sufficient control over employment conditions so as to enable it to bargain with the union. He also found that the Association was a business corporation, was not church-sanctioned or "church operated," and so did not qualify for a religious exemption. The Board adopted the ALJ's findings and conclusions.
In its petition for review, Marti denies that the Board has jurisdiction "because of the symbiotic relationship which exists between the employer and the Old Order Amish farmers who comprise the Farmers' Cheese Cooperative Association." (Petitioner's Brief). In addition, the employer challenges the findings of the violations themselves. The Board has applied for enforcement of its order.
Marti's argument is that because of their religion, the Amish would be prohibited from dealing with its cheese processing plant if it should become unionized. The lack of other facilities in the area would totally deprive the Amish of a market, and termination of the arrangement would be almost as disastrous for Marti. Furthermore, the employer asserts that Marti merely serves as the "alter ego of the Association," and therefore, has ...