134 F.3d 1307 (7th Cir. 1998), 97-2001, N.L.R.B. v. Joy Recovery Technology Corp.

Docket Nº:97-2001.
Citation:134 F.3d 1307
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JOY RECOVERY TECHNOLOGY CORP., Respondent.
Case Date:January 26, 1998
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1307

134 F.3d 1307 (7th Cir. 1998)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

JOY RECOVERY TECHNOLOGY CORP., Respondent.

No. 97-2001.

United States Court of Appeals, Seventh Circuit

January 26, 1998

Argued Dec. 8, 1997.

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Elizabeth Kinney, National Labor Relations Board, Region 13, Chicago, IL, Aileen A. Armstrong, William M. Bernstein (argued), National Labor Relations Board, Appellate Court, Enforcement Litigation, Washington, DC, for Petitioner.

John J. Toomey, Arnold & Kadjan, Chicago, IL, Donald W. Anderson (argued), Daniel V. Kinsella, Burditt & Radzius, Chicago, IL, for Respondent.

Before KANNE, ROVNER, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order requiring the Joy Recovery Technology Corporation to reinstate its transportation department and to bargain with Local 673 of the International Brotherhood of Teamsters.

The NLRB determined that Joy violated Section 8(a)(1) of the Labor Management Relations Act (29 U.S.C. § 158(a)(1)) by interrogating employees, soliciting surveillance of union activities, and threatening employees with layoff if they selected the union as their bargaining representative; that the company violated Section 8(a)(3)(i) of the Act by the discriminatory discipline of employee Edward Kizior for union activity and the unlawful closing of its transportation department and the termination of the employees, all at its facility in Aurora, Illinois. The Board ordered the company to cease and desist from the unfair labor practices, to reestablish its transportation department as it previously existed, to reinstate employees unlawfully terminated, to expunge from its files references to the unlawful suspensions, and to post copies of a remedial notice. In addition, the Board entered a bargaining order, pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

Joy is involved in the reclamation and recycling of scrap wire and other materials for Ameritech, its only customer. Ameritech retains title to the scrap up to the point of resale. Up until the events of this case, Joy maintained a transportation department and transported the scrap using its own employees and equipment, as well as contracting with independent carriers. The transportation department had nine employees.

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In late May 1994 transportation department driver Ed Kizior contacted Robert "Ace" Warren, a Teamsters representative, to find out about obtaining union representation. Kizior arranged for a meeting between Warren and the employees on July 9, 1994. The employees, who were present, signed union authorization cards, and on July 11 the union filed a petition seeking certification. On July 13 Joy received formal notice that the petition had been filed.

On August 5 Kizior received a written warning stating that he and employee Jose Lopez had taken a company truck without prior authorization and that he would be suspended for 3 days without pay. He claims the use of the truck was authorized to take Lopez to his drivers license exam.

By August 11 Joy distributed a memo to employees saying that the transportation department had caused financial losses to the company, that it would be closed, and that the company would rely on contracts with common carriers, effective August 22. On August 12 the company wrote the union, informing it of the above and that it would be notifying its drivers of the decision to terminate their employment.

The Board found that during July--the time when the employees were meeting with union representatives--the company engaged in inappropriate conversations with employees. Company manager Mark Matza asked employee Michael Watson which employees had signed union cards. Watson said he did not know. Matza reportedly told Watson that "[s]omething is going to have to be done" because he did not want it [apparently referring to the union] to "spread throughout the whole plant." During mid-July company supervisor Roberto Baltazar asked Lopez (the employee involved in the truck incident) if he knew anything about the union and which employees had signed union cards. Lopez lied and said he did not. Baltazar also wanted to know if anyone had asked Lopez to sign a card and whether he knew who the head of the union was. Baltazar reportedly told Lopez that they did not need a union at the company.

In addition, the Board found that manager Matza discussed the transportation department with Julia Chandler, a dispatcher for the department. Matza told Chandler that he was interested in knowing who had contacted the union. He asked if it was Kizior, but Chandler refused to say. Matza then asked if it was Dave Woodard, who, Matza said, had previously mentioned "getting a union in there." Matza asked Chandler whether there was anything that the company could offer the employees to "make them not seek representation." He also asked her where the union meetings were held, who attended them, and whether she could obtain copies of union literature. Incredibly, he asked her to take a tape recorder into a meeting to surreptitiously record it. Matza asked Chandler's opinion of closing the transportation department. This was the first time she had heard anything about closing the department, and she asked if the union had anything to do with the company's having the idea to close it. He said that the union "did play a major part" in the decision.

Other findings include that general manager Simon Pawlenko also discussed the union with Chandler, telling her he thought she had brought the union in. He subsequently told her to use more outside carriers for transporting scrap to Joy's facilities.

The company had always used some outside carriers, and maintaining its transportation department had been troublesome because the operation was small and inefficient. In fact, Ameritech complained about the transportation services Joy provided. On July 29, 1994, Ameritech...

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