28 F.3d 678 (7th Cir. 1994), 93-1365, N.L.R.B. v. Dominick's Finer Foods, Inc.

Docket Nº:93-1365, 93-1545.
Citation:28 F.3d 678
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, and Local 703, IBT, AFL-CIO, Intervening 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, DR
Case Date:July 01, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 678

28 F.3d 678 (7th Cir. 1994)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

and

Local 703, IBT, AFL-CIO, Intervening 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, AFL-CIO, Intervening Respondent.

Nos. 93-1365, 93-1545.

United States Court of Appeals, Seventh Circuit

July 1, 1994

Argued Nov. 9, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 26, 1994.

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[Copyrighted Material Omitted]

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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. [*]

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

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jurisdiction, we do not reach the merits of this issue.

I. Introduction

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...

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