N.L.R.B. v. Dominick's Finer Foods, Inc.
| Decision Date | 26 October 1994 |
| Docket Number | 93-1545,AFL-CI,I,Nos. 93-1365,s. 93-1365 |
| Citation | 28 F.3d 678 |
| Parties | 146 L.R.R.M. (BNA) 2784, 128 Lab.Cas. P 11,126 NATIONAL LABOR RELATIONS BOARD, Petitioner, and Local 703, IBT,ntervening Petitioner, v. DOMINICK'S FINER FOODS, INC., Donna's Distribution, Certified Grocers Midwest, Inc., and Mavo Leasing, Respondents. PRODUCE, FRESH & FROZEN FRUITS & VEGETABLES, FISH, BUTTER, EGGS, CHEESE, POULTRY, FLORISTS, NURSERY, LANDSCAPER & ALLIED EMPLOYEES, DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS UNION, LOCAL 703, as a Division of Truck Drivers, Chauffeurs, Warehousemen and Helpers Union, Local 707, affiliated with the National Production Workers Union, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Local 703, IBT,ntervening Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joseph Oertel (argued), N.L.R.B., Contempt Litigation Branch, Washington, DC, Elizabeth Kinney, N.L.R.B., Chicago, IL, Aileen A. Armstrong, Howard E. Perlstein, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, for N.L.R.B.
Neal Petronella, P. Neill Murphy, John Murphy (argued), Kovar, Nelson, Brittain, Sledz & Morris, Chicago, IL, for Dominick's Finer Foods, Inc.
Neal Petronella, P. Neill Murphy, Kovar, Nelson, Brittain, Sledz & Morris, Chicago, IL, for Donna's Distribution.
Jeffrey S. Goldman, Joshua D. Holleb, Fox & Grove, Chicago, IL, for Certified Grocers Midwest, Inc.
Anthony S. Graefe, Brian Steinbach, Banta, Cox & Hennessy, Chicago, IL, for Mavo Leasing.
Susan Brannigan, Asher, Gittler, Greenfield, Cohen & D'Alba, Chicago, IL, for Local 703, International Brotherhood of Teamsters, AFL-CIO.
Cora M. Vaughn (argued), Vaughn & Associates, Gary, IN, for Produce, Fresh & Frozen Fruits & Vegetables, Fish, Butter, Eggs, Cheese, Poultry, Florists, Nursery Landscape & Allied Employees, Drivers, Chauffers, Warehousemen and Helpers Union Local, 703.
Before CUDAHY and ROVNER, Circuit Judges, and WILL, District Judge. *
Before us are cross-petitions to enforce and review an order by the National Labor Relations Board ("the Board") finding the respondents Truck Drivers Local 707 of the National Production Workers' Union, Dominick's Finer Foods, Donna's Distribution, Certified Grocers Midwest, Inc., and Mavo Leasing guilty of unfair labor practices in a representation dispute with Local 703 of the International Brotherhood of Teamsters, AFL-CIO. For the reasons set forth below, we enforce the Board's decision. While the companies have not requested review of the Board's decision, they do request that this Court clarify the Board's decision by holding Local 707 primarily liable and the companies secondarily liable for repayment of union fees and dues. However, because we lack jurisdiction, we do not reach the merits of this issue.
Local 703 of the International Brotherhood of Teamsters, AFL-CIO ("Local 703") is the exclusive bargaining agent for a number of companies in the Chicago area. Local 703 represents employees of Dominick's Finer Foods, Inc., Donna's Distribution, Certified Grocers Midwest, Inc., and Mavo Leasing, referred to collectively as the "companies." Dominick's, Donna's and Mavo Leasing executed exclusive bargaining contracts with Local 703 for a 39-month term from January 1, 1987 until March 31, 1990. Local 703 and Certified entered into a similar contract with a 36-month term from April 1, 1988 until March 31, 1991. In July of 1988, Local 703 and each of the companies extended the contracts so that they would expire on March 31, 1996.
In June of 1988, one month before the contracts were extended, the United States Department of Justice filed suit against the International Brotherhood of Teamsters ("IBT") and several international and local officers, seeking the removal of these officers under the Racketeer Influenced and Corrupt Organizations Act ("RICO"). One of the officers the Justice Department sought to remove was Dominic Senese, president of Local 703. On March 14, 1989, the District Court for the Southern District of New York approved a consent decree providing for an Independent Administrator to oversee the removal of criminals from the IBT. The Independent Administrator subsequently ordered Dominic Senese to resign as president of Local 703 and suspended him from the IBT for life because of his association with known members of La Cosa Nostra. The Independent Administrator's order was affirmed on review.
Pursuant to the order, Senese resigned as president of Local 703 on August 30, 1990. His position was filled by Leonard Joseph II, a trustee and member of Local 703's executive board. Joseph was replaced as trustee by Joseph R. Senese, Dominic Senese's nephew. Dominic Senese's son, Lucian, subsequently took over as Local 703's secretary-treasurer.
The other union involved in this suit is Truck Drivers Local 707 NPWU ("Local 707"). The National Production Worker's Union ("NPWU") is an unaffiliated group of four unions, each bearing the name Local 707. 1 The overall president of the NPWU was Joseph V. Senese, Dominic Senese's son and Lucian Senese's brother. In September 1990, Leonard Joseph and Local 707's president, Philip Cappitelli, discussed transferring control of Local 703's pension fund, health and welfare fund, and severance and retirement fund to Local 707. The assets of these three funds totaled between $110 and $120 million.
Shortly thereafter, Local 703 asked each company to sign a separate Memorandum of Agreement recognizing Local 703 and Local 707 as joint bargaining agents of the companies' employees, although Local 703 had been functioning under contract as the exclusive bargaining agent until that time. The memoranda provided that either union would become the exclusive bargaining agent in the event that the other union disclaimed interest in representing the employees.
Local 703 obtained signatures endorsing the memoranda from employees of each company on an "Authorization Petition," which stated that the employees designated Local 707 to act as their collective bargaining agent, either jointly or separately. Union representatives obtained the signatures during the employees' working hours. Some employees were told that the petition was to protect Local 703's officers and to retain control of the union in the face of a RICO suit pending against the IBT. Other employees were told that the petition was to protect Local 703 from hostile forces threatening the union and that, if the employees did not sign, the government would seize their severance and retirement funds. Local 707 presented the signatures to the companies, who quickly signed the memoranda.
On October 4, less than one week after each company signed the memoranda, Local 703 drafted a "Disclaimer of Interest," stating that Local 703 would no longer represent the employees of the companies and that Local 707 would succeed as the exclusive bargaining agent for the employees. The disclaimer was signed by the majority of Local 703 officers, and Local 707 represented itself as the exclusive bargaining agent for each company.
Local 703 disclaimed interest on the same day the IBT placed Local 703 under trusteeship. The IBT felt that the trusteeship was necessary because Local 703 officers had violated their oath of office and the IBT's constitution by transferring bargaining rights to a non-Teamsters union, Local 707. The trustee personally notified Local 703 of the trusteeship on October 5 and directed the executive board to post notice of the trusteeship in every place where Local 703 had a bargaining contract. Local 703 ignored this order, however, and asked the companies to remit dues to Local 703 as a "division" of Local 707. The companies began deducting monthly dues from employees' wages and forwarding them to Local 707. The dues went to Local 707's treasury, and officers of Local 703 were paid from Local 707's account.
Meanwhile, on October 9, the trustee wrote a letter to all Local 703 members which, in relevant part, stated:
1. No matter what anyone has told you, you are a member of Local 703 and only Local 703 is your collective bargaining agent.
* * * * * *
3. No officer or business representative in place as of October 4, 1990, has any authority to act or speak for Local 703. Until further notice, any grievance or question should be made directly to me....
Under the International Constitution, as Trustee I have complete control and authority over all of the assets and administration of Local 703 including without limit the authority to sign checks, remove officers, business representatives and employees and appoint successors, and negotiate and administer collective bargaining agreements including grievances.
* * * * * *
Again, do not let anyone confuse you about your membership. You are a member of Local 703 only, and I will take all legal action on behalf of Local 703 to ensure it.
(emphasis in original).
On October 12, the trustee held another meeting with the executive board of Local 703. Upon discovering that the board of Local 703 was still diverting union membership to Local 707, the trustee fired the board and directed them to return any Local 703 property in their possession. On October 15, Local 707 hired all discharged Local 703 executive board members and gave them job titles similar to their former titles in the newly created "Local 703, as a division of Local 707."
Subsequently, Local 703 filed with the Board the underlying unfair labor charges against Local 707 and the companies. On March 29, 1991, the Board's regional director filed a consolidated complaint against Local 707 and the companies alleging unfair labor practices. The ALJ heard evidence and wrote an extensive opinion, which the Board adopted with very minor changes. The Board found that the companies violated Sections 8(a)(5) and (1), 8(a)(2) ...
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